As filed with the Securities and Exchange Commission on July 17, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________
INFINITY BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
___________________________
Delaware 4832
(State or other jurisdiction of (Primary Standard Industrial
incorporation or organization) Classification Code Number)
13-2766282
(I.R.S. Employer
Identification Number)
600 Madison Avenue
New York, New York 10022
(212) 750-6400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
___________________________
FARID SULEMAN
Vice President Finance and
Chief Financial Officer
Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
(212) 750-6400
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
____________________________
Please address a copy of all communications to:
RICHARD D. BOHM
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000
___________________________
Approximate date of commencement of proposed sale to the
public: From time to time as determined by market conditions,
after the effective date of this Registration Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box.
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following box. x
__
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities being Registered Registered(1) Per Unit(2) Offering Price(2) Registration Fee
___________________________ _____________ ______________ _________________ ________________
<S> <C> <C> <C> <C>
Debit Securities $5000,000,000 100% $500,000,000 $172,414
</TABLE>
(1) In United States dollars or (i) the equivalent thereof
(based on the applicable exchange rate at the time of sale) if
the Debt Securities are issued with principal amounts denominated
in one or more foreign currencies or currency units as shall be
designated by the Company, or (ii) such greater amount, if Debt
Securities are issued at an original issue discount, as shall
result in aggregate proceeds of U.S. $500,000,000 to the
Company.
(2) Estimated solely for the purpose of calculating the
registration fee.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 1
SUBJECT TO COMPLETION, DATED __________________, 1995
US $500,000,000
INFINITY BROADCASTING CORPORATION
Debt Securities
Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), may from time to time offer its debt securities (the
"Debt Securities"), in one or more series, which may be either
senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt
Securities"), at prices and on terms to be determined at the time
or times of offering. The aggregate initial offering price of
the Debt Securities in respect of which this Prospectus is being
delivered will not exceed U.S.$500,000,000 (or its equivalent
(based on the applicable exchange rate at the time of issue), in
one or more foreign currencies or currency units as shall be
designated by the Company).
Specific terms of the particular Debt Securities in respect of
which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement"),
which will describe, without limitation and where applicable, the
following: the specific designation, aggregate principal
amount, denominations, maturity, premium, if any, interest rate
(which may be fixed or variable) or method of calculating
interest, if any, place or places where principal, premium, if
any, and interest, if any, will be payable, currency in which
principal, premium, if any, and interest, if any, will be
payable, any terms of redemption, any sinking fund provisions,
any listing on a securities exchange, initial public offering or
purchase price, methods of distribution and other special terms.
The Prospectus Supplement also will contain information about
certain United States federal income tax considerations relating
to the Debt Securities, if applicable.
The Debt Securities will be unsecured and, because the Company
is a non-operating holding company, will be effectively
subordinated to all liabilities of the Company's subsidiaries.
Accordingly, holders of the Debt Securities should look only to
the assets of the Company for payments of interest and principal
and premium, if any. Unless otherwise specified in a Prospectus
Supplement, the Senior Debt Securities will rank equally with all
other unsecured and unsubordinated indebtedness of the Company.
The Subordinated Debt Securities will be subordinated in right of
payment to all Senior Indebtedness (as defined herein) of the
Company to the extent described herein and in the Prospectus
Supplement relating thereto. The Debt Securities may be
denominated in United States dollars or, at the option of the
Company if so specified in the applicable Prospectus Supplement,
in one or more foreign currencies or currency units. The Debt
Securities may be issued in registered form or bearer form, or
both. If so specified in the applicable Prospectus Supplement,
Debt Securities of a series may be issued in whole or in part in
the form of one or more temporary or permanent global securities.
The Debt Securities may be sold to or through underwriters,
through dealers, remarketing firms or agents or directly to
purchasers. See "Plan of Distribution". The names of any
underwriters, dealers, remarketing firms or agents involved in
the sale of the Debt Securities in respect of which this
Prospectus is being delivered and any applicable fee, commission
or discount arrangements with them will be set forth in a
Prospectus Supplement.
This Prospectus may not be used to consummate sales of Debt
Securities unless accompanied by a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1995.
<PAGE> 2
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements
and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the
regional offices of the Commission located at 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048 and
Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. In addition, such reports, proxy
statements and other information can be inspected at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with any amendments thereto, the
"Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities
offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, omits certain information contained in
the Registration Statement as permitted by the rules and
regulations of the Commission. For further information with
respect to the Company and the securities offered hereby,
reference is made to the Registration Statement and the exhibits
and the financial statements, notes and schedules filed as a part
thereof or incorporated by reference therein, which may be
inspected at the public reference facilities of the Commission,
at the addresses set forth above. Statements made in this
Prospectus concerning the contents of any documents referred to
herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated into this Prospectus by reference:
1. the Company's Annual Report on Form 10-K for the year
ended December 31, 1994; and
2. the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995.
All documents or reports filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the termination of the offering
described herein shall be deemed to be incorporated by reference
into this Prospectus and to be a part of this Prospectus from
the date of filing of such document. Any statement contained
herein, or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement
or this Prospectus.
The Company will provide without charge to any person to
whom this Prospectus is delivered, on the written or oral request
of such person, a copy of any or all of the foregoing documents
incorporated by reference (other than exhibits not specifically
incorporated by reference into the texts of such documents).
Requests for such documents should be directed to: Infinity
Broadcasting Corporation, 600 Madison Avenue, New York, New York
10022, Attention: Secretary's Office (telephone: 212-750-6400).
<PAGE> 3
THE COMPANY
Infinity Broadcasting Corporation (the "Company" or
"Infinity") is the largest owner and operator of radio stations
in the United States. It is one of only two companies able to
offer advertisers a radio listening audience in each of the
nation's top ten radio markets (the other being CBS, Inc.).
Based on information contained in Duncan's Radio Market Guide
(1995 ed.), Infinity ranked first in total radio revenues in 1994
among all companies owning radio stations in the United States.
The Company serves markets accounting for approximately $2.7
billion in radio advertising revenues in 1994, representing
approximately 27% of the total radio advertising expenditures in
the United States in 1994. Infinity owns and operates 27 radio
stations serving 13 of the nation's largest radio markets.
The Company also has an investment in and manages Westwood One,
Inc., the nation's largest producer and distributor of radio
programs in the U.S.
The Company was incorporated in 1972 in Delaware. Since
Infinity acquired its first radio station in May 1973, it has
expanded by acquiring and developing underperforming stations in
the nation's largest media markets, where the greatest proportion
of radio advertising dollars is spent. The Company believes that
its presence in large markets makes it attractive to advertisers
and that the overall diversity of its stations reduces its
dependence on any single station, local economy or advertiser.
In each of its markets, the Company attracts a specific
demographic group by targeting its program format and hiring
popular on-air talent. The Company's stations serve diverse
target demographics through a broad range of programming formats
such as rock, oldies, news/talk, adult contemporary, all-sports
and country. The Company's overall programming strategy in part
is to acquire significant on-air talent and broadcasting rights
for sports franchises.
The diversity of station and market characteristics,
combined with the Company's acquisition and operating strategies,
have enabled the Company to achieve consistent growth in revenues
and operating cash flow (or operating income plus depreciation
and amortization).
The Company's Class A Common Stock, par value $.002 per
share (the "Class A Common Stock"), is listed on The New York
Stock Exchange.
USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company
intends to use the net proceeds from the sale of the Debt
Securities for general corporate purposes, including working
capital, capital expenditures, investments in or loans to
subsidiaries, refinancing of debt, satisfaction of other
obligations and possible future acquisitions and for the
repurchase of its Class A Common Stock, or for such other
purposes as may be specified in the applicable Prospectus
Supplement. Under the Credit Agreement (as defined in
"Description of Debt Securities -- General," below), the Company
may be required to use the net proceeds from the sale of Debt
Securities to repay outstanding debt, including debt outstanding
under the Credit Agreement. Subject to certain limitations, to
the extent that such net proceeds are received by the Company
<PAGE> 4
prior to December 31, 1995, up to $200 million of the amounts
repaid under the Credit Agreement may be reborrowed for the
purposes described above.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratios of
earnings to fixed charges for the years and periods indicated:
<TABLE>
Three Months
Ended
March 31, Year Ended December 31,
________________ __________________________________
1995 1994 1994 1993 1992 1991 1990
____ ____ ____ ____ ____ ____ ____
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges (1) 1.1 * 1.8 1.4 * * *
________________
<FN>
(1) For purposes of computing the ratio of earnings to fixed
charges, "earnings" consists of net income before extraordinary
items plus income taxes and interest expense. "Fixed charges"
consists of interest expense and amortization of debt discount
and related expenses. If non-cash charges to income for
depreciation and amortization were excluded, the Company's
earnings would have exceeded (been insufficient to cover) fixed
charges by $(11.0) million, $1.6 million, $19.6 million, $53.8
million, $80.7 million, $6.6 million and $12.2 million in 1990,
1991, 1992, 1993 and 1994 and the three months ended March 31,
1994 and 1995, respectively.
* The Company's earnings were insufficient to cover fixed
charges by approximately $39.6 million, $24.0 million, $9.3
million and $3.9 million in 1990, 1991 and 1992 and the three
months ended March 31, 1994, respectively.
</FN>
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities offered hereby are to be issued
in one or more series under the Indenture, dated as of
________________, 1995, as supplemented from time to time (as so
supplemented, the "Senior Indenture"), between the Company
and____________, as trustee (the "Trustee"). The Subordinated
Debt Securities offered hereby are to be issued in one or more
series under the Subordinated Indenture, dated as of ,
1995, as supplemented from time to time (as so supplemented, the
"Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures"), between the Company and
___________________________, as trustee (the "Trustee").
Copies of the Indentures have been filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
The statements herein relating to the Debt Securities and
the following summaries of certain provisions of the Indentures
do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions
of the Indentures (as they may be amended or supplemented
from time to time) and the Trust Indenture Act of 1939, as
amended (the "TIA"). Whenever particular sections or defined
terms of the Indentures (as they may be amended or supplemented
from time to time) are referred to herein or in a Prospectus
Supplement, such sections or defined terms are incorporated
herein or therein by reference.
<PAGE> 5
General
The Debt Securities will be unsecured obligations of the
Company. The Senior Debt Securities will be unsecured and will
rank on a parity with all other unsecured and unsubordinated
obligations of the Company. The Subordinated Debt Securities
will be subordinate and junior in right of payment to the
extent and in the manner set forth in the Subordinated Indenture
to all Senior Indebtedness (as defined below) of the Company.
See " Subordination under the Subordinated Indenture." As of
March 31, 1995, the Company had $519.8 million aggregate
principal amount of Senior Indebtedness outstanding. As a
non-operating holding company, most of the operating assets of
the Company and its consolidated subsidiaries are owned by such
subsidiaries and the Company relies primarily on dividends from
such subsidiaries to meet its obligations for payment of
principal and interest on its outstanding debt obligations and
corporate expenses. Accordingly, the Debt Securities will be
effectively subordinated to all existing and future liabilities
of the Company's subsidiaries, and holders of Debt Securities
should look only to the assets of the Company for payments on the
Debt Securities. The Indentures do not limit the aggregate
amount of Debt Securities which may be issued thereunder. Except
as otherwise provided in the applicable Prospectus Supplement,
the Indentures, as they apply to any series of Debt Securities,
do not limit the incurrence or issuance of other secured or
unsecured debt of the Company, whether under either of the
Indentures, any other indenture that the Company may enter into
in the future or otherwise. See " Subordination under the
Subordinated Indenture" and the Prospectus Supplement relating to
any offering of Subordinated Debt Securities.
On December 22, 1994, the Company and its subsidiaries
amended and restated their existing credit agreement (as amended
thereafter, including an amendment dated as of June 23, 1995, the
"Credit Agreement"), which provides for aggregate borrowings of
up to $700 million, including an acquisition facility of $250
million. Approximately $332 million of borrowings under the
Credit Agreement were used to refinance the Company's existing
debt. As of March 31, 1995, $130.3 million was available under
the Credit Agreement for general corporate purposes, including
for working capital, capital expenditures, investments in or
loans to subsidiaries, refinancing of debt, future acquisitions
and restricted payments, including repurchases of Class A Common
Stock, and $250 million was available for acquisitions of radio
stations. The Credit Agreement prohibits the incurrence of
additional indebtedness by the Company other than (a) under the
Credit Agreement, or (b) subject to certain limitations, (i) to
repay or prepay existing indebtedness under the Credit Agreement
or existing senior subordinated indebtedness of the Company, or
(ii) in an aggregate principal amount not exceeding $35 million
at any one time outstanding. Pursuant to the amendment to the
Credit Agreement dated as of June 23, 1995, subject to certain
limitations, to the extent that the net proceeds from sales of
Debt Securities are received by the Company prior to December 31,
1995, up to $200 million of the amounts repaid under the Credit
Agreement may be reborrowed for the purposes outlined above. The
Credit Agreement also contains certain other financial covenants
that restrict the incurrence of indebtedness by the Company.
Under the most restrictive of such covenants, and subject to the
restrictions indicated in the previous sentence, at March 31,
1995 the Company could have issued up to approximately $205.9
million of additional indebtedness plus the amount of any
existing indebtedness that might have been refinanced. Further
information concerning the provisions of the Credit Agreement
will, to the extent relevant, be provided in the applicable
Prospectus Supplement.
The Debt Securities will be issuable in one or more series
pursuant to an indenture supplemental to the Senior Indenture or
the Subordinated Indenture, as the case may be, or a resolution
of the Company's Board of Directors or a special committee
thereof. (Section 2.1 of each Indenture.)
Reference is made to the applicable Prospectus Supplement
which will accompany this Prospectus for a description of the
<PAGE> 6
specific series of Debt Securities being offered thereby,
including: (1) the title of such Debt Securities; (2) any limit
upon the aggregate principal amount of such Debt Securities; (3)
the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining
such date or dates; (4) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, if
any, or the method of calculating such rate or rates; (5) the
date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the
date or dates on which interest, if any, will be payable and the
record date or dates therefor; (7) the place or places where
principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable or at which Debt Securities may be
surrendered for registration of transfer or exchange; (8) the
period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, such Debt
Securities may be redeemed, in whole or in part, at the option of
the Company; (9) the obligation, if any, of the Company to redeem
or purchase such Debt Securities pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event
or at the option of a holder thereof and the period or periods
within which, the price or prices at which, the currency or
currencies (including currency unit or units) in which, and the
other terms and conditions upon which, such Debt Securities shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation; (10) the denominations in which such Debt Securities
are authorized to be issued; (11) the currency or currency unit
in which Debt Securities may be denominated and/or the currency
or currencies (including currency unit or units) in which
principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable and whether the Company or the
holders of any such Debt Securities may elect to receive payments
in respect of such Debt Securities in a currency or currency unit
other than that in which such Debt Securities are stated to be
payable; (12) if the amount of principal of, or any premium or
interest on, any of such Debt Securities may be determined with
reference to an index or pursuant to a formula or other method,
the manner in which such amounts will be determined; (13) if
other than the principal amount thereof, the portion of the
principal amount of such Debt Securities which will be payable
upon declaration of the acceleration of the maturity thereof or
the method by which such portion shall be determined; (14)
provisions, if any, granting special rights to the holders
of Debt Securities upon the occurrence of such events as may be
specified; (15) any addition to, or modification or deletion of,
any Event of Default or any covenant of the Company specified in
the Indenture with respect to such Debt Securities; (16) the
circumstances under which the Company will pay additional amounts
on the Debt Securities held by non-U.S. persons in respect of
taxes, assessments or similar charges; (17) whether the Debt
Securities will be issued in registered or bearer form or both;
(18) the application, if any, of such means of defeasance or
covenant defeasance as may be specified for such Debt Securities;
(19) whether such Debt Securities are to be issued in whole or
in part in the form of one or more temporary or permanent global
securities and, if so, the identity of the depository for such
global security or securities; (20) in the case of the
Subordinated Indenture, the relative degree to which such Debt
Securities of the series shall be senior to or be subordinated to
other series of such Debt Securities in right of payment, whether
such other series of Debt Securities are outstanding or not; and
(21) any other terms not inconsistent with the terms of the
Indentures pertaining to such Debt Securities. (Section 3.1 of
each Indenture.) Unless otherwise specified in the applicable
Prospectus Supplement, the Debt Securities will not be listed on
any securities exchange.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities in registered form will be issued in
denominations of $1,000 or any integral multiples of $1,000 and
Debt Securities in bearer form will be issued in denominations of
$5,000 or any integral multiples of $5,000. (Section 3.2 of each
Indenture.) Where Debt Securities of any series are issued in
bearer form, the special restrictions and considerations,
including special offering restrictions and special federal
income tax considerations, applicable to any such Debt Securities
and to payment on and transfer and exchange of such Debt
Securities will be described in the applicable Prospectus
Supplement. Bearer Debt Securities will be transferable by
delivery. (Section 3.5 of each Indenture.)
<PAGE> 7
Debt Securities may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates.
Certain federal income tax consequences and special
considerations applicable to any such Debt Securities will be
described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is
payable in one or more foreign currencies or currency units or if
any Debt Securities are denominated in one or more foreign
currencies or currency units or if the principal of, premium, if
any, or interest, if any, on any Debt Securities is payable in
one or more foreign currencies or currency units, the
restrictions, elections, certain federal income tax
considerations, specific terms and other information with respect
to such issue of Debt Securities and such foreign currency or
currency units will be set forth in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of
principal of, premium, if any, or interest on any series of Debt
Securities, special federal income tax, accounting and other
considerations applicable thereto will be described in the
applicable Prospectus Supplement.
The general provisions of the Indentures do not afford
holders of the Debt Securities protection in the event of a
highly leveraged or other transaction involving the Company that
may adversely affect holders of the Debt Securities.
Payment, Registration, Transfer and Exchange
Unless otherwise provided in the applicable Prospectus
Supplement, payments in respect of the Debt Securities will be
made in the designated currency at such office or agency of the
Company maintained for that purpose as the Company may designate
from time to time, except that, at the option of the Company,
interest payments, if any, on Debt Securities in registered form
may be made (i) by checks mailed to the holders of Debt
Securities entitled thereto at their registered addresses or
(ii) by wire transfer to an account maintained by the person
entitled thereto as specified in the Register. (Sections 3.7(a)
and 9.2 of each Indenture.) Unless otherwise indicated in an
applicable Prospectus Supplement, scheduled payments of any
installment of interest on Debt Securities in registered form
will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date
for such interest. (Section 3.7(a) of each Indenture.)
Payment in respect of Debt Securities in bearer form will be
made in the currency and in the manner designated in the
Prospectus Supplement, subject to any applicable laws and
regulations, at such paying agencies outside the United States as
the Company may appoint from time to time. The paying agents
outside the United States, if any, initially appointed by the
Company for a series of Debt Securities will be named in the
Prospectus Supplement. The Company may at any time designate
additional paying agents or rescind the designation of any paying
agents, except that, if Debt Securities of a series are issuable
in registered form, the Company will be required to maintain at
least one paying agent in each place of payment for such series
and if Debt Securities of a series are issuable in bearer form,
the Company will be required to maintain at least one paying
agent in a place of payment outside the United States where Debt
Securities of such series and any coupons appertaining thereto
may be presented and surrendered for payment. (Section 9.2 of
each Indenture.)
Unless otherwise provided in the applicable Prospectus
Supplement, Debt Securities in registered form will be
transferable or exchangeable at the agency of the Company
maintained for such purpose as designated by the Company from
time to time. (Sections 3.5 and 9.2 of each Indenture.) Debt
Securities may be transferred or exchanged without service
charge, although the Company may require a holder to pay any tax
or other governmental charge imposed in connection therewith.
(Section 3.5 of each Indenture.)
<PAGE> 8
Global Debt Securities
The Debt Securities of a series may be issued in whole or in
part in the form of one or more fully registered global
securities (a "Registered Global Security"). Each Registered
Global Security will be registered in the name of a depository
(the "Depository") or a nominee for the Depository identified in
the applicable Prospectus Supplement, will be deposited with such
Depository or nominee or a custodian therefor and will bear a
legend regarding the restrictions on exchanges and registration
of transfer thereof and any such other matters as may be provided
for pursuant to the applicable Indenture. In such a case, one or
more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding Debt Securities of
the series to be represented by such Registered Global Security
or Securities. (Section 3.3 of each Indenture.) Unless and until
it is exchanged in whole or in part for Debt Securities in
definitive certificated form, a Registered Global Security may
not be transferred or exchanged except as a whole by the
Depository for such Registered Global Security to a nominee of
such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor Depository for such
series or a nominee of such successor Depository, or except in
the circumstances described in the applicable Prospectus
Supplement. (Section 3.5 of each Indenture.)
The specific terms of the depository arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Registered Global Security will be described in
the applicable Prospectus Supplement.
Upon the issuance of any Registered Global Security, and the
deposit of such Registered Global Security with or on behalf of
the Depository for such Registered Global Security, the
Depository will credit on its book-entry registration and
transfer system the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the
accounts of institutions ("Participants") that have accounts with
the Depository. The accounts to be credited will be designated
by the underwriters or agents engaging in the distribution of
such Debt Securities or by the Company, if such Debt Securities
are offered and sold directly by the Company. Ownership of
beneficial interests in a Registered Global Security will be
limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in a
Registered Global Security will be shown on, and the transfer of
that ownership will be effected only through, records maintained
by the Depository for such Registered Global Security or by its
nominee. Ownership of beneficial interests in such Registered
Global Security by persons who hold through Participants will be
shown on, and the transfer of such beneficial interests within
such Participants will be effected only through, records
maintained by such Participants.
So long as the Depository for a Registered Global Security,
or its nominee, is the owner of such Registered Global Security,
such Depository or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Security
represented by such Registered Global Security for all
purposes under each Indenture. (Section 3.8 of each Indenture.)
Accordingly, each person owning a beneficial interest in such
Registered Global Security must rely on the procedures of the
Depository and, if such person is not a Participant, on the
procedures of the Participant through which such person
owns its interest, to exercise any rights of a holder under such
Indenture. The Company understands that under existing industry
practices, if it requests any action of holders or if an owner of
a beneficial interest in a Registered Global Security desires to
give or take any instruction or action which a holder is entitled
to give or take under the Indenture, the Depository would
authorize the Participants holding the relevant beneficial
interests to give or take such instruction or action, and such
Participants would authorize beneficial owners owning through
<PAGE> 9
such Participants to give or take such instruction or action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Unless otherwise specified in the Prospectus Supplement,
payments with respect to principal, premium, if any, and
interest, if any, on the Debt Securities represented by a
Registered Global Security registered in the name of the
Depository or its nominee will be made to such Depository or its
nominee, as the case may be, as the registered owner of such
Registered Global Security. The Company expects that the
Depository for any Debt Securities represented by a Registered
Global Security, upon receipt of any payment of principal or
interest in respect of such Registered Global Security, will
credit immediately Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in
the Registered Global Security as shown on the records of the
Depository. The Company also expects that payments by
Participants to owners of beneficial interests in such
Registered Global Security held through such Participants will be
governed by standing instructions and customary practices, as is
now the case with securities in bearer form held for the accounts
of customers or registered in "street name," and will be the
responsibility of such Participants. None of the Company, the
respective Trustees or any agent of the Company or the respective
Trustees shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial interests in any Registered Global Security, or for
maintaining, supervising or reviewing any records relating to
such beneficial interests. (Section 3.8 of each Indenture.)
Unless otherwise specified in the applicable Prospectus
Supplement, if the Depository for any Debt Securities represented
by a Registered Global Security is at any time unwilling or
unable to continue as Depository of such Registered Global
Security and a successor depository is not appointed by the
Company within 90 days, the Company will issue Debt Securities in
certificated form in exchange for such Registered Global
Security. In addition, the Company in its sole discretion may at
any time determine not to have any of the Debt Securities of a
series represented by one or more Registered Global Securities
and, in such event, will issue Debt Securities of such series in
certificated form in exchange for all of the Registered Global
Securities representing such series of Debt Securities. (Section
3.5 of each Indenture.)
The Debt Securities of a series may also be issued in whole
or in part in the form of one or more bearer global securities (a
"Bearer Global Security") that will be deposited with a
depository, or with a nominee for such depository, identified in
the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section
3.4 of each Indenture.) The specific terms and procedures,
including the specific terms of the depository arrangement, with
respect to any portion of a series of Debt Securities to be
represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
Consolidation, Merger or Sale by the Company
Each Indenture permits the Company to consolidate or merge
with or into any other entity or entities, or to transfer or
lease all or substantially all of its assets to any other entity;
provided, however, (i) the person (if other than the Company)
formed by such consolidation, or into which the Company is merged
or which acquires or leases substantially all of the assets of
the Company, is organized and existing under the laws of the
United States, any state thereof or the District of Columbia,
(ii) such person expressly assumes the Company's obligations on
the Debt Securities issued under such Indenture and under such
Indenture and (iii) immediately after giving effect to such
transaction, no Default or Event of Default under such Indenture
exists. (Section 7.1 of each Indenture.)
<PAGE> 10
Events of Default, Notice and Certain Rights on Default
Except as otherwise provided in a Prospectus Supplement
relating to the Debt Securities of a particular series, Events of
Default with respect to Debt Securities of any series are defined
in each Indenture as (a) default in the payment of any interest
on any Debt Security of that series, and the continuance of such
default for a period of 30 days; (b) default in the payment of
any installment of the principal of or any premium on any Debt
Security of that series when due, whether at maturity, upon
redemption, by declaration or otherwise; (c) default in any
material respect by the Company in the performance of any other
covenant or agreement contained in the Indenture under which the
Debt Securities of that series were issued and the continuance of
such default for a period of 90 days after written notice as
provided in such Indenture; (d) certain events of bankruptcy,
insolvency and reorganization of the Company; and (e) in the case
of the Senior Indenture only, default by the Company under any
indenture or other instrument under which any indebtedness for
borrowed money having an outstanding aggregate principal amount
of at least $50 million has been issued or by which it is
governed as a result of which such indebtedness shall have been
accelerated, and such acceleration is not rescinded, cured or
annulled within 30 days after written notice thereof to the
Company by the Trustee for such series or to the Company and the
Trustee for such series by the holders of at least 25% of the
aggregate principal amount of the Debt Securities of such series
then outstanding, provided that such Event of Default will be
cured or waived if the default that resulted in the acceleration
of such other indebtedness is cured or waived, as the case may be
(Section 5.1 of each Indenture). Events of Default with respect
to a specified series of Debt Securities may be deleted from or
added to the Indenture or may be modified and, if so deleted,
added or modified, will be described in the applicable Prospectus
Supplement. (Sections 3.1 and 5.1 of each Indenture.)
Each Indenture provides that the Trustee will, within 90
days after the occurrence of a Default with respect to the Debt
Securities of any series, give to the holders of the Debt
Securities of that series notice of all Defaults known to it
unless such Default shall have been cured or waived; provided
that except in the case of a Default in payment of principal of
(and premium, if any) or interest on the Debt Securities of that
series, the Trustee shall be protected in withholding such notice
if it in good faith determines that withholding such notice is in
the interests of holders of the Debt Securities of that series.
(Section 6.6 of each Indenture.) "Default" means any event which
is, or after notice or passage of time, or both, would be, an
Event of Default. (Section 1.1 of each Indenture.)
<PAGE> 11
Each Indenture provides that, if an Event of Default
specified therein occurs with respect to the Debt Securities of
any series and is continuing, the Trustee for such series or the
holders of 25% in aggregate principal amount of all outstanding
Debt Securities of that series (calculated as provided for
in each Indenture) may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Securities
or Indexed Securities, such portion of the principal amount
specified in the Prospectus Supplement) and accrued interest, if
any, on all the Debt Securities of that series to be due and
payable (provided, with respect to any Debt Securities issued
under the Subordinated Indenture, that the payment of principal
and interest on such Debt Securities shall remain subordinated to
the extent provided in Article 13 of the Subordinated Indenture).
(Section 5.2 of each Indenture.)
Each Indenture provides that the holders of not less than a
majority in aggregate principal amount of any series of Debt
Securities by written notice to the Trustee for such series may
waive, on behalf of the holders of all Debt Securities of such
series, any past Default or Event of Default with respect to that
series and its consequences except a Default or Event of Default
in the payment of the principal of, premium, if any, or interest,
if any, on any Debt Security or with respect to a covenant or
provision that cannot be amended or modified without consent of
each holder of such series of Debt Securities adversely affected.
(Section 5.7 of each Indenture.)
Each Indenture provides that, if a Default or an Event of
Default shall have occurred and be continuing, the holders of not
less than a majority in aggregate principal amount of the Debt
Securities of each series affected (with each such series voting
as a class) may, subject to certain limited conditions, direct
the time, method and place of conducting any proceeding for any
remedy available to the Trustee for such series, or exercising
any trust or power conferred on such Trustee. (Section 5.8
of each Indenture.)
Each Indenture includes a covenant that the Company will
file annually with the Trustee a certificate as to the presence
or absence of certain defaults under the terms of such Indenture.
(Section 9.6 of each Indenture.)
Covenants
Each Indenture contains covenants concerning the payment of
principal of and premium, if any, and interest on the Debt
Securities, the maintenance of the Company's corporate existence
and various other matters. Covenants with respect to a specified
series of Debt Securities may be deleted from or added to the
Indenture or may be modified and, if so deleted, added or
modified, will be described in the applicable Prospectus
Supplement. (Section 3.1 and Article 9 of each Indenture.)
Modification of the Indentures
Each Indenture contains provisions permitting the Company
and the Trustee to enter into one or more supplemental indentures
without the consent of the holders of any of the Debt Securities
in order (i) to evidence the succession of another entity to the
Company and the assumption of the covenants of the Company by
such successor to the Company; (ii) to add to the covenants of
the Company or surrender any right or power of the Company; (iii)
to add additional Events of Default with respect to any series of
Debt Securities; (iv) to add to or change any provisions to such
extent as necessary to facilitate the issuance or administration
of Debt Securities in bearer form or to facilitate the issuance
or administration of Debt Securities in global form; (v) to
change or eliminate any provision affecting only Debt Securities
not yet issued; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities; (viii) to
evidence and provide for successor Trustees or to add or change
any provisions to such extent as necessary to permit or
facilitate the appointment of a separate Trustee or Trustees for
specific series of Debt Securities; (ix) to permit payment in
respect of Debt Securities in bearer form in the United States to
the extent allowed by law; (x) to correct or supplement any
inconsistent provisions or to make any other provisions with
respect to matters or questions arising under such Indenture,
provided that any such action does not adversely affect in any
material respect the interests of any holder of Debt Securities
of any series then Outstanding; (xi) to cure any ambiguity
or correct any mistake; or (xii) in the case of the Subordinated
Indenture, to modify the subordination provisions thereof in a
manner not adverse to the holders of Subordinated Debt Securities
of any series then outstanding. (Section 8.1 of each Indenture.)
Each Indenture also contains provisions permitting the
Company and the Trustee, with the consent of the holders of a
majority in aggregate principal amount of the outstanding Debt
Securities affected by such supplemental indenture (with the Debt
Securities of each series voting as a class), to execute
supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or any
supplemental indenture or modifying the rights of the holders of
Debt Securities of such series, except that, without the consent
of the holder of each Debt Security so affected, no such
supplemental indenture may: (i) change the time for payment of
principal or premium, if any, or interest on any Debt Security;
(ii) reduce the principal on any Debt Security, or change the
manner in which the amount of any of the foregoing is determined;
(iii) reduce the interest rate, or reduce the amount of premium,
if any, payable upon the redemption of any Debt Security; (iv)
reduce the amount of principal payable upon acceleration of the
maturity of any Original Issue Discount or Indexed Security; (v)
change the currency or currency unit in which any Debt Security
or any premium or interest thereon is payable; (vi) impair the
right to institute suit for the enforcement of any payment on
or with respect to any Debt Security; (vii) reduce the percentage
in principal amount of the outstanding Debt Securities affected
thereby, the consent of whose holders is required for
modification or amendment of such Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver
of certain defaults; (viii) change the obligation of the Company
to maintain an office or agency in the places and for the
<PAGE> 12
purposes specified in such Indenture; (ix) in the case of the
Subordinated Indenture, modify the subordination provisions
thereof in a manner adverse to the holders of Subordinated Debt
Securities of any series then outstanding; or (x) modify the
provisions that set forth the provisions in each Indenture that
may not be changed without the consent of the holder of each Debt
Security affected thereby. (Section 8.2 of each Indenture.)
Subordination under the Subordinated Indenture
In the Subordinated Indenture, the Company has covenanted
and agreed, and each holder of a Subordinated Debt Security by
accepting such Debt Security will covenant and agree, that any
Subordinated Debt Securities issued thereunder are subordinate
and junior in right of payment to all Senior Indebtedness to the
extent provided in the Subordinated Indenture. Upon any payment
or distribution to creditors in a voluntary or involuntary
liquidation or dissolution of the Company or in any bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, the holders of Senior
Indebtedness will first be entitled to receive payment in full in
cash or cash equivalents of principal of and interest, if any,
and other amounts payable on such Senior Indebtedness before the
holders of Subordinated Debt Securities will be entitled to
receive or retain any payment in respect of the principal of or
interest, if any, or other amounts on or in respect of the
Subordinated Debt Securities. (Section 13.2 of the Subordinated
Indenture.)
Upon the maturity (by lapse of time, acceleration or
otherwise) of any Senior Indebtedness, all principal thereof,
interest thereon and other amounts due in connection therewith
must first be paid in full in cash or cash equivalents, or such
payment must be duly provided for, before any payment may
be made on account of the principal of or interest on the
Subordinated Debt Securities or to redeem or acquire any of the
Subordinated Debt Securities. Furthermore, no payments in
respect of the Subordinated Debt Securities may be made if at the
time of such payment there exists a default in any payment with
respect to Senior Indebtedness that has not been cured or waived
and the benefits of this provision have not been waived. In
addition, during the continuance of any other event of default
with respect to any Senior Indebtedness under the Credit
Agreement permitting the lenders thereunder to accelerate the
maturity thereof, which event of default shall not have been
cured or waived or ceased to exist, upon notice to the Trustee of
such event of default, no payment may be made by the Company
with respect to the principal of or interest on the Subordinated
Debt Securities or to redeem or acquire any of the Subordinated
Debt Securities, provided that if such Senior Indebtedness has
not been declared to be immediately due and payable within 180
days after the occurrence of such default, payments on the
Subordinated Debt Securities (including any missed payments) may
be made thereafter, and provided, further, that only one such
180-day payment blockage period may be commenced within any
consecutive 365-day period. (Section 13.3 of the Subordinated
Indenture.)
"Debt" means (i) any liability of any entity (A) for
borrowed money, or under any reimbursement obligation relating to
a letter of credit (other than letters of credit obtained in the
ordinary course of business), or (B) evidenced by a bond, note,
debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind or with services
incurred in connection with capital expenditures, or (C) for the
payment of money relating to a capitalized lease obligation; (ii)
any liability of others described in the preceding clause (i)
that the entity has guaranteed or that is otherwise its legal
liability; (iii) interest protection agreements secured by the
collateral securing the Credit Agreement in a notional amount not
<PAGE> 13
exceeding the aggregate principal amount outstanding under such
credit agreement; and (iv) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (i), (ii) and (iii)
above, provided that Debt shall not include accounts payable or
liabilities to trade creditors of any entity.
"Senior Indebtedness" means the principal of and premium, if
any, and interest on (including interest that, but for the filing
of a petition initiating any proceeding pursuant to any
bankruptcy law with respect to the Company, would accrue on such
obligations, whether or not such claim is allowed in such
bankruptcy proceeding) and all other monetary obligations of
every kind or nature due on or in connection with any Debt of the
Company (other than the Subordinated Debt Securities), whether
outstanding on the date of the Subordinated Indenture or
thereafter created, incurred or assumed, unless, in the case of
any particular Debt, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly
provides that such Debt shall not be senior in right of
payment to the Subordinated Debt Securities or to other Debt
which is pari passu with, or subordinated to, the Subordinated
Debt Securities. Without limiting the generality of the
foregoing, "Senior Indebtedness" shall include the Debt under the
Credit Agreement, interest and all other monetary obligations of
any kind or nature due under the Credit Agreement.
Notwithstanding the foregoing, Senior Indebtedness shall not
include (i) Debt of the Company to one of its subsidiaries for
money borrowed or advanced from such subsidiary or (ii) amounts
owed (except to banks and other financing institutions) for
goods, materials or services purchased in the ordinary course of
business.
The Subordinated Indenture places no limitation on the
amount of additional Senior Indebtedness that may be incurred by
the Company. The Company expects from time to time to incur
additional indebtedness constituting Senior Indebtedness.
The Subordinated Indenture provides that the foregoing
subordination provisions, insofar as they relate to any
particular issue of Subordinated Debt Securities, may be changed
prior to such issuance. Any such change would be described in the
Prospectus Supplement relating to such Subordinated Debt
Securities. (Section 3.1 of the Subordinated Indenture.)
Defeasance and Covenant Defeasance
Defeasance and Discharge. Each Indenture provides that if
the terms with respect to the Debt Securities of any series so
provide, the Company will be discharged from any and all
obligations in respect of the Debt Securities of or within such
series (except for certain obligations to register the
transfer or exchange of Debt Securities, to replace stolen, lost
or mutilated Debt Securities, to maintain paying agencies and to
hold monies for payment in trust) upon the deposit with the
<PAGE> 14
relevant Trustee, in trust, of money and/or Government
Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of and each
installment of interest on such Debt Securities on the stated
maturity of such payments in accordance with the terms of the
such Indenture and such Debt Securities. (Sections 3.1 and 4.4 of
each Indenture.) Such a trust may only be established if, among
other things, the Company delivers to the relevant Trustee an
officers' certificate and opinion of counsel (who may be counsel
to the Company) stating that either (i) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of the Indenture there
has been a change in the applicable Federal income tax law, to
the effect that holders of such Debt Securities will not
recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income
tax on the same amount and in the same manner and at the same
times as would have been the case if such defeasance had not
occurred. (Section 4.6 of the Indenture.)
Defeasance of Certain Covenants and Certain Events of
Default. Each Indenture provides that if the terms with respect
to the Debt Securities of any series so provide, the Company may
omit to comply with certain covenants applicable to the Debt
Securities of or within such series and any Event of Default
described in clause (c) under the caption "Events of Default,
Notice and Certain Rights on Default" above, which noncompliance
shall not be deemed to be an Event of Default under such
Indenture and such Debt Securities, upon the deposit with the
relevant Trustee, in trust, of money and/or Government
Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of and
each installment of interest on such Debt Securities on the
stated maturity of such payments in accordance with the terms of
such Indenture and such Debt Securities. The obligations of the
Company under such Indenture and such Debt Securities, other than
with respect to the covenants referred to above, and the Events
of Default, other than the Event of Default referred to above,
shall remain in full force and effect. (Sections 3.1 and 4.5 of
each Indenture.) Such a trust may only be established if, among
other things, the Company has delivered to the relevant Trustee
an opinion of counsel (who may be counsel to the Company) to the
effect that all conditions precedent in the applicable Indenture
relating to such covenant defeasance have been complied with.
(Section 4.6 of the Indenture.)
In addition, with respect to the Subordinated Indenture, in
order to be discharged no default in the payment of principal of
(or premium, if any) or interest on any Senior Indebtedness shall
have occurred and be continuing or no other Event of Default with
respect to the Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Senior Indebtedness
becoming or being declared due and payable prior to the date it
would have become due and payable. (Section 4.6 of the
Subordinated Indenture.)
In the event the Company exercises its option to omit
compliance with certain covenants of the Indenture with respect
to such Debt Securities as described in the preceding paragraphs
and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default other than an Event of
Default described in clause (c) under the caption "Events of
Default, Notice and Certain Rights on Default" above, the amount
of money and Government Obligations on deposit with the
relevant Trustee will be sufficient to pay amounts due on such
Debt Securities at the time of their stated maturity but may not
be sufficient to pay amounts due on such Debt Securities at the
time of the acceleration resulting from such Event of Default.
However, the Company would remain liable for any such deficiency.
Notices
Notices to holders of registered Debt Securities will be
given by mail to the addresses of such holders as they may appear
in the Register. (Section 1.6 of each Indenture.)
Owner of Debt Securities
The Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name a Debt Security in
registered form is registered, and may treat the bearer of a Debt
Security in bearer form, as the absolute owner thereof (whether
<PAGE> 15
or not such Debt Security may be overdue) for the purpose of
receiving payment and for all other purposes. (Section 3.8 of
each Indenture.)
Governing Law
The Indentures and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New
York. (Section 1.11 of each Indenture.)
The Trustees
___________________ is the Trustee under the Senior
Indenture. _________________________________ is the Trustee
under the Subordinated Indenture. [The Company and its
subsidiaries currently conduct banking and other commercial
relationships with ______________ and its affiliates in the
ordinary course of business.] The Indentures contain certain
limitations on the right of each Trustee, should it become
a creditor of the Company, to obtain payment of claims in certain
cases, or to realize for its own account on certain property
received in respect of any such claim as security or otherwise.
Each Trustee will be permitted to engage in certain other
transactions; however, if it acquires certain conflicting
interests, it must eliminate such conflict or resign.
PLAN OF DISTRIBUTION
The Company may sell any of the Debt Securities being
offered hereby in any one or more of the following ways from time
to time: (i) through agents; (ii) to or through underwriters;
(iii) through dealers; and (iv) directly by the Company to
purchasers.
The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices
or at negotiated prices.
Offers to purchase Debt Securities may be solicited by
agents designated by the Company from time to time. Any such
agent involved in the offer or sale of the offered Debt
Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such
agent will be set forth, in the applicable Prospectus Supplement.
Unless otherwise indicated in such Prospectus Supplement, any
such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act,
of the Debt Securities so offered and sold.
If Debt Securities are sold by means of an underwritten
offering, the Company will execute an underwriting agreement with
an underwriter or underwriters at the time an agreement for such
sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters,
and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement
which will be used by the underwriters to make resales to the
public of the applicable Debt Securities. If underwriters are
utilized in the sale of any Debt Securities, such Debt Securities
will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the
time of sale. Debt Securities may be offered to the public
either through underwriting syndicates represented by managing
underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Debt
Securities, unless otherwise indicated in the Prospectus
Supplement, the underwriting agreement will provide that the
<PAGE> 16
obligations of the underwriters are subject to certain conditions
precedent and that the underwriters with respect to a sale of
Debt Securities will be obligated to purchase all such Debt
Securities if any are purchased.
If a dealer is utilized in the sale of the Debt Securities
in respect of which this Prospectus is delivered, the Company
will sell such Debt Securities to the dealer as principal. The
dealer may then resell such Debt Securities to the public at
varying prices to be determined by such dealer at the time
of resale. Any such dealer may be deemed to be an underwriter,
as such term is defined in the Securities Act, of the Debt
Securities so offered and sold. The name of the dealer and the
terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly
by the Company and the sale thereof may be made by the Company
directly to institutional investors or others, who may be deemed
to be underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will
be described in the Prospectus Supplement relating thereto.
Debt Securities may also be offered and sold, if so
indicated in the applicable Prospectus Supplement, in connection
with a remarketing upon their purchase, in accordance with a
redemption or repayment pursuant to their terms, or otherwise, by
one or more firms ("remarketing firms"), acting as principals for
their own accounts or as agents for the Company. Any remarketing
firm will be identified and the terms of its agreement, if any,
with the Company and its compensation will be described in the
applicable Prospectus Supplement. Remarketing firms may be
deemed to be underwriters, as that term is defined in the
Securities Act, in connection with the Debt Securities
remarketed thereby.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize agents and underwriters to solicit offers
by certain institutions to purchase Debt Securities from the
Company at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date stated in the applicable
Prospectus Supplement. Such delayed delivery contracts will be
subject to only those conditions set forth in the applicable
Prospectus Supplement. A commission indicated in the applicable
Prospectus Supplement will be paid to underwriters and agents
soliciting purchases of Debt Securities pursuant to delayed
delivery contracts accepted by the Company.
Agents, underwriters, dealers and remarketing firms may be
entitled under relevant agreements with the Company to
indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to
contribution with respect to payments which such agents,
underwriters, dealers and remarketing firms may be required to
make in respect thereof.
Each series of Debt Securities will be a new issue with no
established trading market. The Company may elect to list any
series of Debt Securities on an exchange, but the Company shall
not be obligated to do so. It is possible that one or more
underwriters may make a market in a series of Debt Securities,
but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can
be given as to the liquidity of the trading market for the
Debt Securities.
Agents, underwriters, dealers, and remarketing firms may be
customers of, engage in transactions with, or perform services
for, the Company and its subsidiaries in the ordinary course of
business.
<PAGE> 17
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus
Supplement, the validity of any Debt Securities offered hereby
will be passed upon for the Company by Debevoise & Plimpton, 875
Third Avenue, New York, New York 10022 and for any underwriters
or agents by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 425 Lexington Avenue, New
York, New York 10017.
EXPERTS
The consolidated financial statements and consolidated
financial statement schedule of Infinity Broadcasting Corporation
and subsidiaries as of December 31, 1994 and 1993, and for
each of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein and in the
registration statement in reliance on the report of KPMG Peat
Marwick LLP, independent certified public accountants,
incorporated by reference herein and upon the authority of said
firm as experts in accounting and auditing.
<PAGE> II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth those expenses to be incurred
by the Company in connection with the issuance and distribution
of the securities being registered. Except for the Securities
and Exchange Commission filing fee, all amounts shown are
estimates.
Securities and Exchange Commission filing fee . . . $172,414
Fees and expenses of Trustees . . . . . . . . . . . *
Blue Sky and legal investment fees and expenses . . *
Printing and engraving expenses . . . . . . . . . . *
Accountant's fees and expenses. . . . . . . . . . . *
Legal fees and expenses . . . . . . . . . . . . . . *
Miscellaneous expenses. . . . . . . . . . . . . . . *
_______
Total. . . . . . . . . . . . . . . . . . . $ *
=======
____________
* To be supplied by amendment.
Item 15. lndemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as
amended, provides in regards to indemnification of directors and
officers as follows:
145. Indemnification of Officers, Directors, Employees and
Agents; Insurance.
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that
he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of
<PAGE> II-2
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of this section, or in defense of
any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination
shall be made (1) by a majority vote of the directors who were
not parties to such action, suit or proceeding even though less
than a quorum, or (2) if there are no such directors, or, if such
directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this section shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
<PAGE> II-3
partnership, joint venture, trust or other enterprise, shall
stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to
in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Article TEN of the Company's Restated Certificate of
Incorporation provides in regard to indemnification as follows:
The Corporation shall, to the extent required, and
may, to the extent permitted, by Section 145 of the
General Corporation Law of Delaware, as the same may be
amended from time to time, indemnify and reimburse all
persons whom it may indemnify and reimburse pursuant
thereto.
Article VI of the Company's Amended and Restated By-Laws
provides in regard to indemnification of directors and officers
as follows:
SECTION 6.01. Actions, Suits or Proceedings Other
Than by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the corporation), by reason of the fact that he is
or was or has agreed to become a Director or officer,
or is or was serving or has agreed to serve at the
request of the Corporation as a Director or officer of
another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his
behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in
good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the
corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a
manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was
unlawful.
<PAGE> II-4
SECTION 6.02. Actions or Suits by or in the Right of the
Corporation. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection
with the defense or settlement of such action or suit and any
appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation except that no indemnification shall be made
in respect of any claim. issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 6.03. Indemnification for Costs, Charges and
Expenses of Successful Party. Notwithstanding the other
provisions of this Article, to the extent that a Director or
officer of the Corporation has been successful on the merits or
otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 6.01 or 6.02 of this Article,
or in defense of any claim, issue or matter therein, he shall
he indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on
his behalf in connection therewith.
SECTION 6.04. Determination of Right to Indemnification.
Any indemnification under Sections 6.01 and 6.02 of this Article
(unless ordered by a court) shall be paid by the Corporation
unless a determination is made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion, or (3) by the stockholders, that
indemnification of the Director or officer is not proper in the
circumstances because he has not met the applicable standard of
conduct set forth in Sections 6.01 and 6.02 of this Article.
SECTION 6.05. Advance of Costs, Charges and Expenses.
Costs, charges and expenses (including attorneys' fees) incurred
by a person referred to in Sections 6.01 and 6.02 of this Article
in defending a civil or criminal action, suit or proceeding shall
be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a
Director or officer in his capacity as a Director or officer (and
not in any other capacity in which service was or is rendered by
such person while a Director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only
upon receipt of any undertaking by or on behalf of the Director
or officer to repay all amounts so advanced in the event that it
shall ultimately be determined that such Director or officer is
not entitled to be indemnified by the Corporation as authorized
in this Article. The Board of Directors may, in the manner set
forth above, and upon approval of such Director or officer of the
Corporation, authorize the Corporation's counsel to represent
such person, in any action, suit or proceeding, whether or not
the Corporation is a party to such action, suit or proceeding.
<PAGE> II-5
SECTION 6.06. Procedure for Indemnification. Any
indemnification under Sections 6.01, 6.02 and 6.03, or advance of
costs, charges and expenses under Section 6.05 of this Article,
shall be made promptly, and in any event within 60 days, upon the
written request of the Director or officer. The right to
indemnification or advances as granted by this Article shall be
enforceable by the Director or officer in any court of competent
jurisdiction, if the Corporation denies such request, in whole or
in part, or if no disposition thereof is made within 60 days.
Such person's costs and expenses incurred in connection with
successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than
an action brought to enforce a claim for the advance of costs,
charges and expenses under Section 6.05 of this Article where the
required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of
conduct set forth in Sections 6.01 or 6.02 of this Article, but
the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders)
to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of
conduct set forth in Sections 6.01 or 6.02 of this Article, nor
the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent
legal counsel, and its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met
the applicable standard of conduct.
SECTION 6.07. Other Rights; Continuation of Right to
Indemnification. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which a
person seeking indemnification may be entitled under any law
(common or statutory), provision of the Certificate of
Incorporation, other By-Law, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to
be a Director or officer and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All
rights to indemnification under this Article shall be deemed to
be a contract between the Corporation and each Director or
officer of the Corporation who serves or served in such capacity
at any time while this Article is in effect. Any repeal or
modification of this Article or any repeal or modification of
relevant provisions of the Delaware General Corporation Law or
any other applicable laws shall not in any way diminish any
rights to indemnification of such Director or officer or the
obligations of the Corporation arising hereunder. The
Corporation may also indemnify any and all other persons whom it
shall have power to indemnify under any applicable law from time
to time in effect to the extent authorized by the Board of
Directors and permitted by such law.
SECTION 6.08. Insurance. The Corporation shall purchase
and maintain insurance on behalf of any person who is or was or
has agreed to become a Director or officer of the Corporation, or
is or was serving at the request of the Corporation as a Director
or officer of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability
under the provisions of this Article, provided that such
insurance is available on acceptable terms, which determination
shall be made by a vote of a majority of the entire Board of
Directors.
<PAGE> II-6
SECTION 6.09. Savings Clause. If this Article or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each Director and officer of the Corporation as to
costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the
right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
SECTION 6.10. Definition. For purposes of this Article,
the term "corporation" shall include constituent corporations
referred to in Subsection (h) of Section 145 of the General
Corporation Law of the State of Delaware (or any similar
provision of applicable law at the time in effect).
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, provides in regard to the limitation of liability of
directors and officers as follows:
(b) In addition to the matters required to be set forth in
the certificate of incorporation by subsection (a) of this
section, the certificate of incorporation may also contain any or
all of the following matters:
* * * *
(7) A provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct of a knowing violation of law, (iii) under section 174
of this Title, or (iv) for any transaction from which the
director derived an improper personal benefit. No such provision
shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision
becomes effective. All references in this paragraph to a
director shall also be deemed to refer (x) to a member of the
governing body of a corporation which is not authorized to issue
capital stock, and (y) to such other person or persons, if any,
who, pursuant to a provision of the certificate of incorporation
in accordance with subsection (a) of Section 141 of this title,
exercise or perform any of the powers or duties otherwise
conferred or imposed upon the board of directors by this title.
Pursuant to specific authority granted by Section 102 of the
General Corporation Law of the State of Delaware, ARTICLE ELEVEN
of the Company's Restated Certificate of Incorporation provides
in regard to the limitation of liability of directors and
officers as follows:
A director of this Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director; provided,
that nothing contained in this ARTICLE ELEVEN shall eliminate or
limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter
amended to authorize the further elimination or limitation of the
liability of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
This ARTICLE ELEVEN may not be amended or modified to
increase the liability of a director, or repealed, except upon
the affirmative vote of the holders of 75% or more of the
outstanding Common Shares. No such amendment, modification, or
repeal shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior
to such amendment, modification, or repeal.
The provisions of this ARTICLE ELEVEN shall not be deemed
to limit or preclude indemnification of a director by the
Corporation for any liability of a director that has not been
eliminated by the provisions of this ARTICLE ELEVEN.
The Company has executed indemnity agreements with Messrs.
Wiener, Carrus, Karmazin, Suleman, Lerman, Batkin and Sherman
that require it to indemnify these individuals for liabilities
incurred by them because of an act or omission or neglect or
breach of duty committed while acting in the capacity of an
officer or director of the Company, to the full extent permitted
by the laws of the State of Delaware. Certain actions, including
acts for which indemnification is found by a court to be
illegal and contrary to public policy, are excluded from the
coverage of the agreements.
Item 16. Exhibits.
4.01 Form of Senior Indenture, dated as of _______________, 1995,
between the Company and _______________, as Trustee.
4.02 Form of Subordinated Indenture, dated as of _______________, 1995,
between the Company and ________________________, as Trustee.
5.01 Opinion of Debevoise & Plimpton. *
10.01 Amendment No. 1 dated as of June 23, 1995 between the
Company; each of the lenders identified under the caption "Banks"
on the signature pages thereof (collectively, the "Banks"); The
Chase Manhattan Bank (National Association), as
administrative agent for the Banks; Bank of America Illinois,
Bank of Montreal, The Bank of New York, Chemical Bank,
Compagnie Financiere de Cic et de L'Union Europeenne, The First
National Bank of Boston, and Natwest Bank N.A. (formerly National
Westminister Bank USA), as co-agents for the Banks; and Chemical
Bank, as collateral agent for the Banks.
12.01 Statement Re: Computation of Ratio of Earnings to Fixed Charges. *
23.01 Consent of KPMG Peat Marwick LLP.
23.02 Consent of Debevoise & Plimpton (included in Exhibit 5.01).
24.01 Powers of Attorney of certain officers and directors of the Company
(on page II-10 hereof).
25.01 Statement of Eligibility and Qualification of the Senior Trustee
under the Trust Indenture Act of 1939. *
25.02 Statement of Eligibility and Qualification of the
Subordinated Trustee under the Trust Indenture Act of 1939. *
____________
* To be filed by amendment.
<PAGE> II-8
Item 17. Undertakings.
(a) Rule 415 Offering.
The undersigned Registrants hereby undertake:
(1) To file, during any period In which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents
by Reference.
The undersigned registrants hereby undertake that, for purpose
of determining any liability under the Securities Act of 1933,
each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Acceleration of Effectiveness.
Insofar as indemnifications for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons, if any, of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by a registrant of expenses incurred or
paid by a director, officer or controlling person, if any, of
such registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, such
<PAGE> II-9
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) Rule 430A.
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon 430A and contained in a form of prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<PAGE> II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Infinity Broadcasting Corporation (i) certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and (ii) has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in The City of New York,
State of New York, on this day of , 1995.
INFINITY BROADCASTING CORPORATION
By /s/ Mel Karmazin
_________________________________________
Mel Karmazin
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Mel Karmazin and
Farid Suleman, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead in any
and all capacities, to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully and to all intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or
their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Gerald Carrus Chairman of the Board of Directors
_____________________ and Treasurer July 17, 1995
Gerald Carrus
/s/ Michael A. Wiener Co-Chairman of the Board of
_____________________ Directors and Secretary July 17, 1995
Michael A. Wiener
/s/ Mel Karmazin Director, President and Chief
_____________________ Executive Officer (principal
Mel Karmazin executive officer) July 17, 1995
/s/ Farid Suleman Director, Vice President-Finance,
____________________ and Chief Financial Officer
Farid Suleman (principal financial officer) July 17, 1995
/s/ Alan R. Batkin Director July 17, 1995
____________________
Alan R. Batkin
/s/ Steven A. Lerman Director July 17, 1995
____________________
Steven A. Lerman
/s/ Jeffrey Sherman Director July 17, 1995
_____________________
Jeffrey Sherman
/s/ James L. Singleton Director July 17, 1995
_______________________
James L. Singleton
/s/ James A. Stern Director July 17, 1995
______________________
James A. Stern
______________________________________________________________________________
INFINITY BROADCASTING CORPORATION
to
_____________________________, Trustee
INDENTURE
_______________________________
Dated as of ______________, 1995
_______________________________
Providing for Issuance of
Debt Securities in Series
______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions and Other Provisions
of General Application. . . . . . . . . . . . .1
1.1. Definitions . . . . . . . . . . . . . . . . . .1
1.2. Compliance Certificates and Opinions. . . . . 12
1.3. Form of Documents Delivered to Trustee. . . . 13
1.4. Acts of Holders . . . . . . . . . . . . . . . 13
1.5. Notices, etc., to Trustee and Company . . . . 15
1.6. Notice to Holders; Waiver . . . . . . . . . . 16
1.7. Headings and Table of Contents. . . . . . . . 17
1.8. Successor and Assigns . . . . . . . . . . . . 17
1.9. Separability. . . . . . . . . . . . . . . . . 17
1.10. Benefits of Indenture . . . . . . . . . . . . 17
1.11. Governing Law . . . . . . . . . . . . . . . . 17
1.12. Legal Holidays. . . . . . . . . . . . . . . . 18
ARTICLE 2 Security Forms. . . . . . . . . . . . . . . . 18
2.1. Forms Generally . . . . . . . . . . . . . . . 18
2.2. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . 19
2.3. Securities in Global Form . . . . . . . . . . 19
2.4. Form of Legend for Securities
in Global Form. . . . . . . . . . . . . . . . 20
ARTICLE 3 The Securities. . . . . . . . . . . . . . . . 21
3.1. Amount Unlimited; Issuable in Series. . . . . 21
3.2. Denominations . . . . . . . . . . . . . . . . 26
3.3. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . . . . 26
3.4. Temporary Securities. . . . . . . . . . . . . 29
3.5. Registration, Transfer and Exchange . . . . . 30
3.6. Replacement Securities. . . . . . . . . . . . 35
3.7. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . . . . 37
3.8. Persons Deemed Owners . . . . . . . . . . . . 39
3.9. Cancellation. . . . . . . . . . . . . . . . . 40
3.10. Computation of Interest . . . . . . . . . . . 41
3.11. CUSIP Numbers . . . . . . . . . . . . . . . . 41
3.12. Currency and Manner of Payment
in Respect of Securities. . . . . . . . . . . 41
3.13. Appointment and Resignation of
Exchange Rate Agent. . . . . . . . . . . . 46
ARTICLE 4 Satisfaction, Discharge and Defeasance. . . . 47
4.1. Termination of Company's Obligations
Under the Indenture. . . . . . . . . . . . . . . . 47
4.2. Application of Trust Funds . . . . . . . . . . . . 49
4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . 49
4.4. Defeasance and Discharge . . . . . . . . . . . . . 50
4.5. Covenant Defeasance. . . . . . . . . . . . . . . . 51
4.6. Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . 51
4.7. Deposited Money and Government
Obligations to Be Held in Trust. . . . . . . . . . 54
4.8. Repayment to Company . . . . . . . . . . . . . . . 54
4.9. Indemnity for Government Obligations . . . . . . . 55
ARTICLE 5 Defaults and Remedies . . . . . . . . . . . . 55
5.1. Events of Default. . . . . . . . . . . . . . . . . 55
5.2. Acceleration; Rescission and Annulment . . . . . . 57
5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . 58
5.4. Trustee May File Proofs of Claim . . . . . . . . . 58
5.5. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . 59
5.6. Delay or Omission Not Waiver . . . . . . . . . . . 59
5.7. Waiver of Past Defaults. . . . . . . . . . . . . . 59
5.8. Control by Majority. . . . . . . . . . . . . . . . 60
5.9. Limitation on Suits by Holders . . . . . . . . . . 60
5.10. Rights of Holders to Receive Payment. . . . . 61
5.11. Application of Money Collected. . . . . . . . 61
5.12. Restoration of Rights and Remedies. . . . . . 62
5.13. Rights and Remedies Cumulative. . . . . . . . 62
5.14. Undertaking for Costs . . . . . . . . . . . . 63
ARTICLE 6 The Trustee . . . . . . . . . . . . . . . . . 63
6.1. Certain Duties and Responsibilities
of the Trustee . . . . . . . . . . . . . . . . . . 63
6.2. Rights of Trustee. . . . . . . . . . . . . . . . . 63
6.3. Trustee May Hold Securities. . . . . . . . . . . . 64
6.4. Money Held in Trust. . . . . . . . . . . . . . . . 64
6.5. Trustee's Disclaimer . . . . . . . . . . . . . . . 65
6.6. Notice of Defaults . . . . . . . . . . . . . . . . 65
6.7. Reports by Trustee to Holders. . . . . . . . . . . 65
6.8. Securityholder Lists . . . . . . . . . . . . . . . 65
6.9. Compensation and Indemnity . . . . . . . . . . . . 66
6.10. Replacement of Trustee. . . . . . . . . . . . 67
6.11. Acceptance of Appointment by Successor. . . . 68
6.12. Eligibility; Disqualification . . . . . . . . 70
6.13. Merger, Conversion, Consolidation
or Succession to Business. .. . . . . . . . . 71
6.14. Appointment of Authenticating Agent . . . . . 71
ARTICLE 7 Consolidation, Merger or Sale
by the Company .. . . . . . . . . . . . . . . 73
7.1. Consolidation, Merger or Sale of Assets
Permitted. . . . . . . . . . . . . . . . . . . . 73
ARTICLE 8 Supplemental Indentures . . . . . . . . . . . 74
8.1. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . 74
8.2. Supplemental Indentures With
Consent of Holders . . . . . . . . . . . . . . . . 76
8.3. Compliance with Trust Indenture . . . . . . . . . 77
8.4. Execution of Supplemental Indentures.. . . . . . . 77
8.5. Effect of Supplemental Indentures. . . . . . . . . 78
8.6. Reference in Securities to Supplemental
Indentures.. . . . . . . . . . . . . . . . . . . 78
ARTICLE 9 Covenants . . . . . . . . . . . . . . . . . . 78
9.1. Payment of Principal, Premium, if any,
and Interest . . . . . . . . . . . . . . . . . . . 78
9.2. Maintenance of Office or Agency. . . . . . . . . . 78
9.3. Money for Securities Payments to
Be Held in Trust; Unclaimed Money. . . . . . . . . 80
9.4. Corporate Existence. . . . . . . . . . . . . . . . 82
9.5. Reports by the Company . . . . . . . . . . . . . . 82
9.6. Annual Review Certificate. . . . . . . . . . . . . 83
9.7. Books of Record and Account. . . . . . . . . . . . 83
ARTICLE 10 Redemption. . . . . . . . . . . . . . . . . . 83
10.1. Applicability of Article. . . . . . . . . . . 83
10.2. Election to Redeem; Notice to Trustee . . . . 84
10.3. Selection of Securities to Be Redeemed. . . . 84
10.4. Notice of Redemption. . . . . . . . . . . . . 85
10.5. Deposit of Redemption Price . . . . . . . . . 86
10.6. Securities Payable on Redemption Date . . . . 86
10.7. Securities Redeemed in Part . . . . . . . . . 88
ARTICLE 11 Sinking Funds . . . . . . . . . . . . . . . . 88
11.1. Applicability of Article. . . . . . . . . . . 88
11.2. Satisfaction of Sinking Fund
Payments with Securities . .. . . . . . . . . 88
11.3. Redemption of Securities for
Sinking Fund . .. . . . . . . . . . . . . . . 89
ARTICLE 12 Meetings of Holders of Securities . . . . . . 89
12.1. Purposes for Which Meetings May
Be Called.. . . . . . . . . . . . . . . . . . 89
12.2. Call, Notice and Place of Meetings. . . . . . 90
12.3. Persons Entitled to Vote at Meetings. . . . . 90
12.4. Quorum; Action. . . . . . . . . . . . . . . . 90
12.5. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . 92
12.6. Counting Votes and Recording Action
of Meetings . . . . . . . . . . . . . . . . . 93
Reconciliation and tie between Indenture, dated as of
________, 1995 and the Trust Indenture Act of 1939, as
amended.
Trust Indenture Act Indenture
of 1939 Section Section
___________________ ________
310(a)(1). . . . . . . . . . . . . . . . . . . 6.12
(a)(2). . . . . . . . . . . . . . . . . . 6.12
(a)(3). . . . . . . . . . . . . . . . . . TIA
(a)(4). . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . 6.10; 6.12;
TIA
311(a) . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . TIA
312(a) . . . . . . 6.8
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . TIA
313(a) . . . . . . 6.7; TIA
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . TIA
(d) . . . . . . . . . . . . . . . . . . . TIA
314(a) . . . . . . 9.5; 9.6; TIA
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . 1.2
(c)(2). . . . . . . . . . . . . . . . . . 1.2
(c)(3). . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . NotApplicable
(e) . . . . . . . . . . . . . . . . . . . TIA
(f) . . . . . . . . . . . . . . . . . . . TIA
315(a) . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . 6.6
(c) . . . . . . . . . . . . . . . . . . . 6.1
(d)(1). . . . . . . . . . . . . . . . . . TIA
(d)(2). . . . . . . . . . . . . . . . . . TIA
(d)(3). . . . . . . . . . . . . . . . . . TIA
(e) . . . . . . . . . . . . . . . . . . . TIA
316(a)(last sentence). . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . 5.2; 5.8
(a)(1)(B) . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . 5.9; 5.10
(c) . . . . . . . . . . . . . . . . . . . TIA
317(a)(1). . . . . . . . . . . . . . . . . . . 5.3
(a)(2). . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . 9.3
318(a) . . . . . . 1.11
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . 1.11; TIA
This reconciliation and tie section does not con-
stitute part of the Indenture.
INDENTURE, dated as of _________, 1995, from
INFINITY BROADCASTING CORPORATION, a Delaware corporation
(the "Company"), to _________, Trustee, a _______ banking
corporation (the "Trustee").
Recitals
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured debentures, notes or other
evidences of indebtedness ("Securities") to be issued in one
or more series as herein provided.
All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its
terms, have been done.
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed as follows for the equal and
ratable benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions. (a) For all purposes
of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by ref-
erence therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles as in
effect from time to time; and
<PAGE> 2
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Inden-
ture as a whole and not to any particular Article,
Section or other subdivision.
"Affiliate" of any specified Person means any
Person directly or indirectly controlling or controlled by,
or under direct or indirect common control with, such speci-
fied Person. For 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating
agent appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of gen-
eral circulation, in the official language of the country of
publication or in the English language, customarily pub-
lished on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive pub-
lications in an Authorized Newspaper are required hereunder
they may be made (unless otherwise expressly provided here-
in) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued here-
under which is payable to bearer.
"Board" or "Board of Directors" means the Board of
Directors of the Company, or any duly authorized committee
thereof.
"Board Resolution" means a copy of a resolution of
the Board of Directors, 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 the certificate, and delivered to the Trust-
ee.
"Business Day", when used with respect to any
Place of Payment or any other particular location referred
to in this Indenture or in the Securities, means, unless
otherwise specified with respect to any Securities pursuant
to Section 3.1, each Monday, Tuesday, Wednesday, Thursday
<PAGE> 3
and Friday which is not a day on which banking institutions
in that Place of Payment or particular location are autho-
rized or obligated by law, regulation or executive order 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 Indenture such Commis-
sion is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body perform-
ing such duties at such time.
"Company" means the party named as the Company in
the first paragraph of this Indenture until a successor
corporation shall have become such pursuant to the appli-
cable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, re-
spectively, a written order or request signed in the name of
the Company by two Officers, one of whom must be the Chair-
man of the Board, the Co-Chairman of the Board, the Presi-
dent and Chief Executive Officer, the Vice President-Finance
and Chief Financial Officer or the Treasurer of the Company.
"Conversion Event" means the cessation of use of
(i) a Foreign Currency both by the issuer of such currency
and for the settlement of transactions by a central bank or
other public institutions of or within the international
banking community, (ii) the ECU both within the European
Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or
(iii) any currency unit other than the ECU for the purposes
for which it was established.
"Corporate Trust Office" means the office of the
Trustee in [New York, New York] at which at any particular
time its corporate trust business shall be principally ad-
ministered, which office at the date hereof is located at
______________, Attention: ___________.
"currency unit" for all purposes of this Indenture
shall include any composite currency.
"Debt" means indebtedness for money borrowed.
<PAGE> 4
"Default" means any event which is, or after no-
tice or passage of time, or both, would be, an Event of
Default.
"Depositary", when used with respect to the Secu-
rities of or within any series issuable or issued in whole
or in part in global form, means the Person designated as
Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
shall mean or include each Person which is then a Depositary
hereunder, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States
as at the time of payment is legal tender for the payment of
public and private debts.
"ECU" means the European Currency Unit as defined
and revised from time to time by the Council of the European
Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the
European Atomic Energy Community.
"European Monetary System" means the European
Monetary System established by the Resolution of December 5,
1978 of the Council of the European Communities.
"Exchange Rate Agent", when used with respect to
Securities of or within any series, means, unless otherwise
specified with respect to any Securities pursuant to Section
3.1, a New York Clearing House bank designated pursuant to
Section 3.1 or Section 3.13.
"Exchange Rate Officer's Certificate" means a
certificate setting forth (i) the applicable Market Exchange
Rate or the applicable bid quotation and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any)
and interest, if any (on an aggregate basis and on the basis
of a Security having the lowest denomination principal
amount in the relevant currency or currency unit), payable
with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation,
signed by the Chairman of the Board, the Co-Chairman of the
Board, the President and Chief Executive Officer, the Vice
President-Finance and Chief Financial Officer or the
Treasurer of the Company.
<PAGE> 5
"Foreign Currency" means any currency issued by
the government of one or more countries other than the Unit-
ed States or by any recognized confederation or association
of such governments.
"Government Obligations" means securities which
are (i) direct obligations of the United States or, if spec-
ified as contemplated by Section 3.1, the government which
issued the currency in which the Securities of a particular
series are payable, for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person con-
trolled or supervised by and acting as an agency or instru-
mentality of the United States or, if specified as contem-
plated by Section 3.1, such government which issued the
foreign currency in which the Securities of a particular
series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States or such other government, which, in either
case, 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 Government Obligation or a specific payment of
interest on or principal of any such 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 Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security,
a bearer thereof or of a coupon appertaining thereto and,
with respect to a Registered Security, a Person in whose
name a Security is registered on the Register.
"Indenture" means this Indenture as originally
executed or as amended, waived or supplemented from time to
time and shall include and incorporate by reference the
forms and terms of particular series of Securities
established as contemplated hereunder.
"Indexed Security" means a Security the terms of
which provide that the principal amount thereof payable at
Stated Maturity may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest
only after maturity, means interest payable after maturity
and, when used with respect to any other Security, means the
interest payable thereon in accordance with its terms.
<PAGE> 6
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Market Exchange Rate" means, unless otherwise
specified with respect to any Securities pursuant to Section
3.1, (i) for any conversion involving a currency unit on the
one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and
Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 3.1 for the Securities of the
relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank
of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could
be purchased with the Foreign Currency from which conversion
is being made from major banks located in New York City,
London or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with re-
spect to any Securities pursuant to Section 3.1, in the
event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion
and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks
in New York City, London or other principal market for such
currency or currency unit in question (which may include any
such bank acting as Trustee under this Indenture), or such
other quotations as the Exchange Rate Agent shall deem ap-
propriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect
of such currency or currency unit shall be that upon which a
nonresident issuer of securities designated in such currency
or currency unit would purchase such currency or currency
unit in order to make payments in respect of such securi-
ties.
<PAGE> 7
"Maturity", when used with respect to any Securi-
ty, means the date on which the principal of such Security
or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or
otherwise.
"Officer" means the Chairman of the Board, the
Co-Chairman of the Board, the President and Chief Executive
Officer, the Vice President-Finance and Chief Financial Of-
ficer, the Treasurer, the Secretary or the Assistant
Secretary of the Company.
"Officers' Certificate", when used with respect to
the Company, means a certificate signed by two Officers, one
of whom must be the Chairman of the Board, the Co-Chairman
of the Board, the President and Chief Executive Officer, the
Vice President-Finance and Chief Financial Officer or the
Treasurer of the Company.
"Opinion of Counsel" means a written opinion from
the general counsel of the Company or other legal counsel
who is reasonably acceptable to the Trustee. Such counsel
may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Se-
curity which provides for an amount less than the stated
principal amount thereof to be due and payable upon declar-
ation of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Secur-
ities, means, as of the date of determination, all Secur-
ities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money or Government Obligations
(as provided for in Section 4.6) 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 and any coupons appertaining
thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor sat-
isfactory to the Trustee have been made;
<PAGE> 8
(iii) Securities, except to the extent provided in
Sections 4.4 and 4.5, with respect to which the Company
has effected defeasance and/or covenant defeasance as
provided in Article 4; and
(iv) Securities which have been replaced or paid
pursuant to Section 3.6 or in exchange for or in lieu
of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of the Outstanding Secur-
ities have given any request, demand, authorization, direc-
tion, notice, consent or waiver hereunder, or whether suf-
ficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations
required by section 313 of the Trust Indenture Act, (w) the
principal amount of any Original Issue Discount Securities
that may be counted in making such determination or calcula-
tion and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declara-
tion of acceleration of the Maturity thereof pursuant to
Section 5.2, (x) the principal amount of any Security denom-
inated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is orig-
inally issued by the Company as set forth in an Exchange
Rate Officer's Certificate delivered to the Trustee, of the
principal amount (or, in the case of an Original Issue Dis-
count Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in
clause (w) above) of such Security, (y) the principal amount
of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Out-
standing for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security
pursuant to Section 3.1, and (z) 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
making such calculation or 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
<PAGE> 9
and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of, premium, if any, interest
and any other payments due on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securi-
ties of a series from time to time the specific terms of
which Securities, including, without limitation, the rate or
rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and
the redemption provisions, if any, with respect thereto, are
to be determined by the Company upon the issuance of such
Securities.
"Person" means any individual, corporation,
company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of or within any series, means the place or
places where the principal of, premium, if any, interest and
any other payments due on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"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 au-
thenticated and delivered under Section 3.6 in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Secur-
ity shall be deemed to evidence the same debt as the muti-
lated, destroyed, lost or stolen Security.
<PAGE> 10
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such re-
demption pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, in whole or in part, means the
price at which it is to be redeemed pursuant to this Inden-
ture.
"Registered Security" means any Security issued
hereunder and registered as to principal and interest in the
Register.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of or within any
series means the date specified for that purpose as contem-
plated by Section 3.1.
"Responsible Officer", when used with respect to
the Trustee, shall mean the chairman or vice-chairman of the
board of directors, the chairman or vice-chairman of the
executive committee of the board of directors, the presi-
dent, any vice president, the secretary, any assistant sec-
retary, 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
officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also shall mean, with respect to a particular
corporate trust matter, any officer to whom such matter is
referred because of his knowledge of and familiarity with
the particular subject.
"Security" or "Securities" has the meaning stated
in the first recital of this Indenture and more particularly
means a Security or Securities of the Company issued, au-
thenticated and delivered under this Indenture.
"Special Record Date" for the payment of any De-
faulted Interest means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or in a
coupon representing such installment of interest as the
fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
<PAGE> 11
"Subsidiary" of any Person means any corporation,
company, partnership, joint venture, association, joint-stock
company, trust or other entity of which at least a
majority of the outstanding voting securities having
ordinary voting power for the election of directors or other
governing body, or other ownership interests ordinarily
constituting a majority voting interest, is owned or
controlled, directly or indirectly, by such Person or by one
or more Subsidiaries of such Person, or by such Person and
one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as amended and as in effect on the date of this
Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the
first paragraph of this Indenture until a successor Trustee
replaces it pursuant to the applicable provisions of this
Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee"
as used with respect to the Securities of any series shall
mean the Trustee with respect to the Securities of that
series.
"United States" means, unless otherwise specified
with respect to the Securities of any series as contemplated
by Section 3.1, the United States of America (including the
States thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Person" means, unless otherwise specified
with respect to the Securities of any series as contemplated
by Section 3.1, a citizen, national or resident of the Unit-
ed States, a corporation, partnership or other entity cre-
ated or organized in or under the laws of the United States
or any political subdivision thereof, or an estate or trust,
the income of which is subject to United States federal
income taxation regardless of its source.
(b) The following terms shall have the meanings
specified in the Sections referred to opposite such term
below:
<PAGE> 12
Term Section
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.12(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.12(c)
Section 1.2. Compliance Certificates and Opin-
ions. Upon any application or request by the Company to the
Trustee to take any action under any provision of this In-
denture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be
given by an officer or officers of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to com-
pliance with a condition or covenant provided for in this
Indenture (other than pursuant to Sections 2.3, 3.3 and 9.6)
shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or
covenant 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 or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant 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.
<PAGE> 13
Section 1.3. Form of Documents Delivered to
Trustee. In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be cer-
tified by, or covered by the opinion of, only one such Per-
son, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal mat-
ters, 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 or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such officer or counsel
knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations as to
such matters are erroneous.
Any certificate, statement or opinion of an of-
ficer of the Company or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such of-
ficer or counsel, as the case may be, knows, or in the exer-
cise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion is
based are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents, cer-
tificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by (i) one or
more instruments of substantially similar tenor signed by
such Holders in person or by agent or proxy duly appointed
in writing, (ii) the record of Holders of Securities voting
in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of
Securities duly called and held in accordance with the
provisions of Article 12 or (iii) a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when
such instrument or instruments or record or both are
received by the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments
and record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so
voting at such meeting. The Company and the Trustee may
assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received
<PAGE> 14
prior to the time that the action to which such Act relates
has become effective. 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
conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the
manner provided in Section 12.6.
(b) The fact and date of the execution by any
Person of any such instrument or writing and the authority
of the Person executing the same may be proved in any manner
which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be
proved by the production of such Bearer Securities or by a
certificate executed by any trust company, bank, banker or
other depository, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on de-
posit with such trust company, bank, banker or other deposi-
tory, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (i)
another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some
other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer
<PAGE> 15
Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the
Trustee deems sufficient.
(d) The ownership of Registered Securities shall
be proved by the Register.
(e) Any request, demand, authorization, direc-
tion, notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the same
Security and any coupons appertaining thereto and the Holder
of every Security or coupon 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 Act is made upon such Security or
coupon.
(f) If the Company shall solicit from the Holders
any request, demand, authorization, direction, notice, con-
sent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authoriza-
tion, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of
Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the pur-
poses of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than
six months after the record date.
Section 1.5. Notices, etc., to Trustee and
Company. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
<PAGE> 16
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Trustee at
its Corporate Trust Office, Attention: __________, 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 it at 600 Madison Avenue, New York, New
York 10022, Attention: _________ or at any other
address previously furnished in writing to the Trustee
by the Company.
Section 1.6. Notice to Holders; Waiver. Where
this Indenture provides for notice to Holders of any event,
(i) if any of the Securities affected by such event are
Registered Securities, such notice to the Holders thereof
shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event,
at his address as it appears in the Register, within the
time prescribed for the giving of such notice, and (ii) if
any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be
sufficiently given (unless otherwise herein or in the terms
of such Bearer Securities expressly provided) if published
once in an Authorized Newspaper in New York, New York, and
in such other city or cities, if any, as may be specified as
contemplated by Section 3.1. Such notices shall be deemed
to have been given on the date of such mailing or
publication.
In any case where notice to Holders is given by
mail or by publication, neither the failure to mail or
publish such notice, nor any defect in any notice so mailed
or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of
Registered Securities or of Bearer Securities. Any notice
mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail
service or by reason of any other cause it shall be imprac-
ticable to give such notice as provided above, then such
notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every
purpose hereunder. If it is impossible or, in the opinion
<PAGE> 17
of the Trustee, impracticable to give any notice by publi-
cation in the manner herein required, then such publication
in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this
Indenture shall be in the English language, except that any
published notice may be in an official language of the
country of publication.
Where this Indenture 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 equivalent of such notice.
Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such
waiver.
Section 1.7. 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 1.8. Successor and Assigns. All cove-
nants and agreements in this Indenture by the Company shall
bind its successor and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provi-
sion of this Indenture or 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 1.10. Benefits of Indenture. Nothing in
this Indenture or in the Securities, expressed 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 1.11. Governing Law. THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. This Indenture is subject to the Trust
Indenture Act and if any provision hereof limits, qualifies
or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control. Whether or not this Indenture
is required to be qualified under the Trust Indenture Act,
the provisions of the Trust Indenture Act required to be
included in an indenture in order for such indenture to be
so qualified shall be deemed to be included in this
<PAGE> 18
Indenture with the same effect as if such provisions were
set forth herein and any provisions hereof which may not be
included in an indenture which is so qualified shall be
deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an
indenture so qualified.
Section 1.12. Legal Holidays. In any case where
any Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of
any Security or coupon other than a provision in the
Securities of any series which specifically states that such
provision shall apply in lieu of this Section), payment of
principal, premium, if any, or interest need not be made at
such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with
the same force and effect as if made on such date; provided
that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be, if such amount is so paid
on the next succeeding Business Day.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of
each series and the coupons, if any, to be attached thereto
shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of the
Securities and coupons, if any. If temporary Securities of
any series are issued as permitted by Section 3.4, the form
thereof also shall be established as provided in the
<PAGE> 19
preceding sentence. If the forms of Securities and coupons,
if any, of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such
action taken pursuant thereto, including a copy of the
approved form of Securities or coupons, if any, shall be
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sec-
tion 3.1, Bearer Securities shall have interest coupons
attached.
The definitive Securities and coupons, if any, may
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 and
coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series de-
scribed in the within-mentioned Indenture.
_______________,
as Trustee
By ________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If
Securities of or within a series are issuable in whole or in
part in global form, any such Security may provide that it
shall represent the aggregate or specified amount of
Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Out-
standing Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities
represented thereby, shall be made in such manner and by
such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to
Section 3.3 or 3.4. Subject to the provisions of Section
3.3 and, if applicable, Section 3.4, the Trustee shall
deliver and redeliver any security in permanent global form
in the manner and upon instructions given by the Person or
<PAGE> 20
Persons specified therein or in the applicable Company
Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with
Section 1.2 hereof and need not be accompanied by an
Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section
3.3 shall apply to any Security in global form if such
Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply
with Section 1.2 hereof and need not be accompanied by an
Officers' Certificate or an Opinion of Counsel) with regard
to the reduction in the principal amount of Securities
represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and
3.7, unless otherwise specified as contemplated by Section
3.1, payment of principal of, premium, if any, and interest
on any Registered Security in permanent global form shall be
made to the registered holder thereof.
Section 2.4. Form of Legend for Securities in
Global Form. Any Security in global form authenticated and
delivered hereunder shall bear a legend in substantially the
following form or in such other form as may be specified in
accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF
A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
<PAGE> 21
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in
Series. (a) The aggregate principal amount of Securities
which may be authenticated and delivered under this Inden-
ture is unlimited. The Securities may be issued from time
to time in one or more series.
(b) The following matters shall be established
with respect to each series of Securities issued hereunder
(i) by a Board Resolution, (ii) by action taken pursuant to
a Board Resolution and (subject to Section 3.3) set forth,
or determined in the manner provided, in an Officers' Cer-
tificate or (iii) in one or more indentures supplemental
hereto:
(1) the title of the Securities of the series
(which title shall distinguish the Securities of the
series from all other series of Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be
authenticated and delivered under this Indenture (which
limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 10.7
or any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of
and premium, if any, on the Securities of the series is
payable or the method of determination thereof;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method
of calculating such rate or rates of interest, the date
or dates from which such interest shall accrue or the
method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest
shall be payable and, with respect to Registered
Securities, the Regular Record Date, if any, for the
interest payable on any Registered Security on any
Interest Payment Date, and the basis upon which
interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
<PAGE> 22
(5) the place or places where the principal of,
premium, if any, and interest, if any, on Securities of
the series shall be payable, any Registered Securities
of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the
Company in respect of the Securities of the series and
this Indenture may be served and where notices to
Holders pursuant to Section 1.6 will be published;
(6) the period or periods within which, the price
or prices at which, the currency or currencies
(including currency unit or units) in which, and the
other terms and conditions upon which, Securities of
the series may be redeemed, in whole or in part, at the
option of the Company and, if other than as provided in
Section 10.3, the manner in which the particular
Securities of such series (if less than all Securities
of such series are to be redeemed) are to be selected
for redemption;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a
Holder thereof and the period or periods within which,
the price or prices at which, the currency or curren-
cies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities
of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, if Registered Securities,
and if other than denominations of $5,000 and any
integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or
currencies (including currency unit or units) in which
the principal of, premium, if any, and interest, if
any, on the Securities of the series shall be payable,
or in which the Securities of the series shall be
denominated, and the particular provisions applicable
thereto in accordance with, in addition to, or in lieu
of the provisions of Section 3.12;
<PAGE> 23
(10) if the payments of principal of, premium, if
any, or interest, if any, on the Securities of the
series are to be made, at the election of the Company
or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such
Securities are denominated or designated to be payable,
the currency or currencies (including currency unit or
units) in which such payments are to be made, the terms
and conditions of such payments and the manner in which
the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable
thereto in accordance with, in addition to, or in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of,
premium, if any, and interest, if any, on the Secu-
rities of the series shall be determined with reference
to an index, formula or other method (which index,
formula or method may be based, without limitation, on
a currency or currencies (including currency unit or
units) other than that in which the Securities of the
series are denominated or designated to be payable),
the index, formula or other method by which such
amounts shall be determined and any special voting or
defeasance provisions in connection therewith;
(12) if other than the principal amount thereof,
the portion of the principal amount of such Securities
of the series which shall be payable upon declaration
of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the
Person to whom any interest on any Registered Security
of the series shall be payable and the manner in which,
or the Person to whom, any interest on any Bearer Secu-
rities of the series shall be payable;
(14) provisions, if any, granting special rights
to the Holders of Securities of the series upon the
occurrence of such events as may be specified;
(15) any deletions from, modifications of or
additions to the Events of Default set forth in Section
5.1 or covenants of the Company set forth in Article 9
pertaining to the Securities of the series;
(16) under what circumstances, if any, and with
what procedures and documentation the Company will pay
additional amounts on the Securities and coupons, if
any, of that series held by a Person who is not a U.S.
Person (including any modification of the definition of
such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms
of any such option);
<PAGE> 24
(17) whether Securities of the series shall be
issuable as Registered Securities or Bearer Securities
(with or without interest coupons), or both, and any
restrictions applicable to the offering, sale, transfer
or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer
Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of
the series and any temporary global Security
representing Outstanding Securities of the series shall
be dated if other than the date of original issuance of
the first Security of the series to be issued;
(19) the forms of the Securities and coupons, if
any, of the series;
(20) the applicability, if any, to the Securities
and coupons, if any, of or within the series of Sec-
tions 4.4 and 4.5, or such other means of defeasance or
covenant defeasance as may be specified for the
Securities and coupons, if any, of such series, and
whether, for the purpose of such defeasance or covenant
defeasance, the term "Government Obligations" shall
include obligations referred to in the definition of
such term which are not obligations of the United
States or an agency or instrumentality of the United
States;
(21) if other than the Trustee, the identity of
the Registrar and any Paying Agent;
(22) the designation of the initial Exchange Rate
Agent, if any;
(23) if the Securities of the series shall be
issued in whole or in part in global form, (i) the
Depositary for such global Securities, (ii) whether
beneficial owners of interests in any Securities of the
series in global form may exchange such interests for
certificated Securities of such series and of like
tenor of any authorized form and denomination, and
(iii) if other than as provided in Section 3.5, the
circumstances under which any such exchange may occur;
<PAGE> 25
(24) the designation of the initial Depositary;
(25) any restrictions on the registration,
transfer or exchange of the Securities;
(26) if the Securities of the series may be issued
or delivered (whether upon original issuance or upon
exchange of a temporary Security of such series or
otherwise), or any installment of principal or interest
is payable, only upon receipt of certain certificates
or other documents or satisfaction of other conditions
in addition to those specified in this Indenture, the
form and terms of such certificates, documents or
conditions; and
(27) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture) including any terms which may be required by
or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection
with the marketing of Securities of the series.
(c) All Securities of any one series and coupons,
if any, appertaining thereto shall be substantially identi-
cal except as to denomination and except as may otherwise be
provided (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the re-
lated Officers' Certificate or (iii) in an indenture supple-
mental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders,
for issuances of additional Securities of such series.
(d) If any of the terms of the Securities of any
series are established by action taken pursuant to a Board
Resolution, a copy of such Board Resolution shall be deliv-
ered to the Trustee at or prior to the delivery of the Offi-
cers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and
an appropriate record of any action taken pursuant thereto
in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
<PAGE> 26
Section 3.2. Denominations. Unless otherwise
provided as contemplated by Section 3.1, any Registered
Securities of a series shall be issuable in denominations of
$1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination
of $5,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery
and Dating. Securities shall be executed on behalf of the
Company by two Officers. The Company's seal shall be
reproduced on the Securities. The signatures of any of
these officers on the Securities may be manual or facsimile.
The coupons, if any, of Bearer Securities shall bear the
facsimile signature of two Officers.
Securities and coupons bearing the manual or fac-
simile signatures of individuals who were at any time Offi-
cers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to be Offi-
cers prior to the authentication and delivery of such Secu-
rities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may
deliver Securities, together with any coupons appertaining
thereto, of any series executed by the Company to the
Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and
the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities; provided, however,
that in the case of Securities of a series offered in a
Periodic Offering, the Trustee shall authenticate and
deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions
from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series
have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, in authen-
ticating such Securities and accepting the additional re-
sponsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and
(subject to section 315(a) through (d) of the Trust Inden-
ture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating,
<PAGE> 27
(1) if the forms of such Securities and any
coupons have been established by or pursuant to a Board
Resolution as permitted by Section 2.1, that such forms
have been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities and any
coupons have been established by or pursuant to a Board
Resolution as permitted by Section 3.1, that such terms
have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture,
subject in the case of Securities offered in a Periodic
Offering, to any conditions specified in such Opinion
of Counsel; and
(3) that such Securities together with any
coupons appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, mora-
torium and other similar laws of general applicability
relating to or affecting the enforcement of creditors'
rights and to general equity principles and except fur-
ther as enforcement thereof may be limited by (A) re-
quirements that a claim with respect to any Securities
<PAGE> 28
denominated other than in Dollars (or a Foreign Curren-
cy or currency unit judgment in respect of such claim)
be converted into Dollars at a rate of exchange pre-
vailing on a date determined pursuant to applicable law
or (B) governmental authority to limit, delay or pro-
hibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
Notwithstanding that such form or terms have been so estab-
lished, the Trustee shall have the right to decline to
authenticate such Securities if, in the opinion of the
Trustee (after consultation with counsel), the issue of such
Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise. Notwith-
standing the generality of the foregoing, the Trustee will
not be required to authenticate Securities denominated in a
Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such
Securities.
Notwithstanding the provisions of Section 3.1 and
of the two preceding paragraphs, if all of the Securities of
any series are not to be issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two
preceding paragraphs in connection with the authentication
of each Security of such series if such documents, with
appropriate modifications to cover such future issuances,
are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be
issued.
With respect to Securities of a series offered in
a Periodic Offering, the Trustee may rely, as to the
authorization by the Company of any of such Securities, the
form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sec-
tions 2.1 and 3.1 and this Section, as applicable, in
connection with the first authentication of Securities of
such series.
If the Company shall establish pursuant to Section
3.1 that the Securities of a series are to be issued in
whole or in part in global form, then the Company shall
execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series,
authenticate and deliver one or more Securities in global
form that (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 Security or Securities in global form, (ii) shall be
registered, if a Registered Security, in the name of the
Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set
forth in Section 2.4.
<PAGE> 29
Each Depositary designated pursuant to Section 3.1
for a Registered Security in global form must, at the time
of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable
statute or regulation. If requested by the Company, the
Trustee shall enter into an agreement with a Depositary
governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities issued
in global form.
Each Registered Security shall be dated the date
of its authentication and each Bearer Security shall be
dated as of the date specified as contemplated by Section
3.1.
No Security or coupon appertaining thereto shall
be entitled to any benefits under this Indenture or be valid
or obligatory for any purpose until authenticated by the
manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent and no coupon shall be
valid until the Security to which it appertains has been so
authenticated. Such signature upon any Security shall be
conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this
Indenture. Except as permitted by Section 3.6 or 3.7, the
Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 hereof and need not
be accompanied by an Officers' Certificate or an Opinion of
Counsel) stating that such Security has never been issued
and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the
preparation of definitive Securities of any series, the
Company may execute and, upon Company Order, the Trustee
shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor and form, with or
without coupons, of the definitive Securities in lieu of
which they are issued and with such appropriate insertions,
<PAGE> 30
omissions, substitutions and other variations as the
officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities
and coupons, if any. In the case of Securities of any
series, such temporary Securities may be in global form,
representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in
global form, each of which shall be exchanged in accordance
with the provisions thereof, if temporary Securities of any
series are issued, the Company will cause definitive Secu-
rities of such series to be prepared without unreasonable
delay. After 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 pursuant to Section 9.2 in a
Place of Payment for such series, without charge to the
Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations
and of like tenor; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security unless the Trustee shall
have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in
the form approved in or pursuant to the Board Resolutions
relating thereto and such delivery shall occur only outside
the United States. 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 except as otherwise specified as
contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Ex-
change. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency to be
maintained by the Company in accordance with Section 9.2 in
a Place of Payment a register (the "Register") in which,
subject to such reasonable regulations as it may prescribe,
<PAGE> 31
the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered
Securities. The Register shall be in written form or any
other form capable of being converted into written form
within a reasonable time. The Trustee is hereby initially
appointed "Registrar" for the purpose of registering Regis-
tered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency
maintained pursuant to Section 9.2 in a Place of Payment for
that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount
containing identical terms and provisions.
Bearer Securities (except for any temporary global
Bearer Securities) or any coupons appertaining thereto
(except for coupons attached to any temporary global Bearer
Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities
of any series (except a Registered Security in global form)
may be exchanged for other Registered Securities of the same
series, of any authorized denominations, of a like aggregate
principal amount and containing identical terms and provi-
sions, upon surrender of the Registered Securities to be ex-
changed at such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making
the exchange is entitled to receive. Unless otherwise
specified as contemplated by Section 3.1, Bearer Securities
may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Sec-
tion 3.1, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities (if
the Securities of such series are issuable in registered
form) or Bearer Securities (if Bearer Securities of such
series are issuable in more than one denomination and such
exchanges are permitted by such series) of the same series,
of any authorized denominations, of like tenor and aggregate
principal amount and containing identical terms and condi-
tions, upon surrender of the Bearer Securities to be ex-
<PAGE> 32
changed at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto apper-
taining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent
any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 9.2, interest repre-
sented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency
located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at
such office or agency on the related date for payment of De-
faulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such
coupon is so surrendered with such Bearer Security, such
coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder
of such coupon, when due in accordance with the provisions
of this Indenture.
Notwithstanding anything herein to the contrary,
the exchange of Bearer Securities for Registered Securities
shall be subject to applicable laws and regulations in
effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer
<PAGE> 33
Securities for Registered Securities if it has received an
Opinion of Counsel that as a result of such exchange the
Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in
effect and the Company has delivered to the Trustee a
Company Order directing the Trustee not to make such
exchanges thereafter, unless and until the Trustee receives
a subsequent Company Order to the contrary. The Company
shall deliver copies of such Company Order to the Registrar.
Notwithstanding any other provision of this
Section, unless and until it is exchanged in whole or in
part for Securities in certificated form, a Security in
global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for the Securities
of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such
series or if at any time the Depositary for the Securities
of such series shall no longer be eligible under Section
3.3, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the
Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the
Securities of such series and the Company shall execute, and
the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver,
Securities of such series of like tenor in certificated
form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the
Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in
global form.
The Company may at any time in its sole discretion
determine that Securities issued in global form shall no
longer be represented by such a Security or Securities in
global form. In such event the Company shall execute, and
the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver,
Securities of such series of like tenor in certificated
<PAGE> 34
form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the
Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in
global form.
If specified by the Company pursuant to Section
3.1 with respect to a series of Securities, the Depositary
for such series may surrender a Security in global form of
such series in exchange in whole or in part for Securities
of such series in certificated form on such terms as are
acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a
new certificated Security or Securities of the same
series of like tenor, of any authorized denomination as
requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depositary a new Security in global
form of like tenor in a denomination equal to the
difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered
to Holders thereof.
Upon the exchange of a Security in global form for
Securities in certificated form, such Security in global
form shall be cancelled by the Trustee. Unless expressly
provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities,
Securities in certificated form issued in exchange for a
Security in global form pursuant to this Section shall be
registered in such names and in such authorized denomina-
tions as the Depositary for such Security in global form,
pursuant to instructions from its direct or indirect par-
ticipants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
<PAGE> 35
All Securities issued upon any registration of
transfer or upon any 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 Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so
required by the Company, the Registrar or the Trustee) be
duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar
and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any regis-
tration of transfer or for any exchange of Securities, but
the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4 or
10.7 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of, or exchange any Securities for a
period beginning at the opening of business 15 days before
any selection for redemption of Securities of like tenor and
of the series of which such Security is a part and ending at
the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given
to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or
exchange any Registered Security so selected for redemption,
in whole or in part, except the unredeemed portion of any
Security being redeemed in part; or (iii) to exchange any
Bearer Security so selected for redemption, except that such
a Bearer Security may be exchanged for a Registered Security
of that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration,
transfer and exchange may be modified, supplemented or
superseded with respect to any series of Securities by a
Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. Replacement Securities. If a
mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall
authenticate and deliver a replacement Registered Security,
if such surrendered Security was a Registered Security, or a
<PAGE> 36
replacement Bearer Security with coupons corresponding to
the coupons appertaining to the surrendered Security, if
such surrendered Security was a Bearer Security, of the same
series and date of maturity.
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 or Security with
a destroyed, lost or stolen coupon 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 or coupon has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall
authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a
replacement Registered Security, if such Holder's claim
appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons apper-
taining to the destroyed, lost or stolen Bearer Security or
the Bearer Security to which such lost, destroyed or stolen
coupon appertains, if such Holder's claim appertains to a
Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a
number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to the
destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead
of issuing a new Security or coupon, pay such Security or
coupon; provided, however, that payment of principal of and
any premium or interest on Bearer Securities shall, except
as otherwise provided in Section 9.2, be payable only at an
office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.1,
any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining
thereto.
<PAGE> 37
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,
its agents and counsel) connected therewith.
Every new Security of any series with its coupons,
if any, issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, or in exchange for a
Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional con-
tractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupon, if any,
or the destroyed, lost or stolen coupon, 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 and their cou-
pons, if any, 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 or coupons.
Section 3.7. Payment of Interest; Interest
Rights Preserved. (a) Unless otherwise provided as
contemplated by Section 3.1, interest, if any, on any
Registered Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the
office or agency maintained for such purpose pursuant to
Section 9.2; provided, however, that at the option of the
Company, interest on any series of Registered Securities
that bear interest may be paid (i) by check mailed to the
address of the Person entitled thereto as it shall appear on
the Register of Holders of Securities of such series or (ii)
at the expense of the Company, by wire transfer to an
account maintained by the Person entitled thereto as
specified in the Register of Holders of Securities of such
series.
Unless otherwise provided as contemplated by Sec-
tion 3.1, (i) interest, if any, on Bearer Securities shall
be paid only against presentation and surrender of the cou-
pons for such interest installments as are evidenced thereby
as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation
and surrender of such Securities; in either case at the
office of a Paying Agent located outside the United States,
<PAGE> 38
unless the Company shall have otherwise instructed the
Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer
Security to be treated as a "registration-required obliga-
tion" under United States laws and regulations. The
interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a
coupon attached thereto only upon presentation and surrender
of such coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon
of the payment of such interest. If at the time a payment
of principal of or interest, if any, on a Bearer Security or
coupon shall become due, the payment of the full amount so
payable at the office or offices of all the Paying Agents
outside the United States is illegal or effectively pre-
cluded because of the imposition of exchange controls or
other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in
writing to make such payments at a Paying Agent located in
the United States, provided that provision for such payment
in the United States would not cause such Bearer Security to
be treated as a "registration-required obligation" under
United States laws and regulations.
(b) Unless otherwise provided as contemplated by
Section 3.1, any interest on Registered Securities of any
series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to
the Holders on the relevant Regular Record Date by virtue of
their having been such Holders, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such
Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner.
The Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such
<PAGE> 39
money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted
Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
such Registered Securities at his address as it appears
in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of such De-
faulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on
a specified date in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Registered Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause
(2), such manner of payment shall be deemed practicable
by the Trustee.
(c) Subject to the foregoing provisions of this
Section and Section 3.5, each Security delivered under this
Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 3.8. Persons Deemed Owners. Prior to
due presentment of any Registered 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 Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7)
<PAGE> 40
interest on such Registered Security and for all other
purposes whatsoever, whether or not such Registered 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.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner
of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer
Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of
the Company or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests
of a Security in global form, or for maintaining, super-
vising or reviewing any records relating to such beneficial
ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
Depositary (or its nominee), as a Holder, with respect to
such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such
Security in global form, the operation of customary prac-
tices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Security in
global form.
Section 3.9. Cancellation. The Company at any
time may deliver Securities and coupons to the Trustee for
cancellation. The Registrar and any Paying Agent shall
forward to the Trustee any Securities and coupons sur-
rendered to them for replacement, for redemption, for
registration of transfer, for exchange or payment or for
credit against any sinking fund payment. The Trustee shall
cancel all Securities and coupons surrendered for replace-
ment, for redemption, for registration of transfer, or for
<PAGE> 41
exchange, payment, credit against any sinking fund payment
or cancellation and shall destroy cancelled Securities and
coupons and, at the request of the Company, shall issue a
certificate of destruction to the Company. The Company may
not issue new Securities to replace Securities that it has
paid or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as
otherwise specified as contemplated by Section 3.1, interest
on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in
issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, in such case, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any
notice of a redemption 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.
Section 3.12. Currency and Manner of Payment in
Respect of Securities. (a) Unless otherwise specified with
respect to any Securities pursuant to Section 3.1, with
respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below
or the Holders of which have not made the election provided
for in paragraph (b) below, and with respect to Bearer
Securities of any series, except as provided in paragraph
(d) below, payment of the principal of, premium, if any, and
interest, if any, on any Registered or Bearer Security of
such series will be made in the currency or currencies or
currency unit or units in which such Registered Security or
Bearer Security, as the case may be, is payable. The
provisions of this Section 3.12 may be modified or
superseded pursuant to Section 3.1 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.1,
with respect to Registered Securities of any series, that
Holders shall have the option, subject to paragraphs (d) and
(e) below, to receive payments of principal of, premium, if
any, or interest, if any, on such Registered Securities in
any of the currencies or currency units which may be
<PAGE> 42
designated for such election by delivering to the Trustee
(or the applicable Paying Agent) a written election with
signature guarantees and in the applicable form established
pursuant to Section 3.1, not later than the close of
business on the Election Date immediately preceding the ap-
plicable payment date. If a Holder so elects to receive
such payments in any such currency or currency unit, such
election will remain in effect for such Holder or any trans-
feree of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (or any ap-
plicable Paying Agent) for such series of Registered
Securities (but any such change must be made not later than
the close of business on the Election Date immediately
preceding the next payment date to be effective for the
payment to be made on such payment date, and no such change
of election may be made with respect to payments to be made
on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to
which the Company has deposited funds pursuant to Article 4
or with respect to which a notice of redemption has been
given by or on behalf of the Company). Any Holder of any
such Registered Security who shall not have delivered any
such election to the Trustee (or any applicable Paying
Agent) not later than the close of business on the appli-
cable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currency
unit as provided in Section 3.12(a). The Trustee (or the
applicable Paying Agent) shall notify the Exchange Rate
Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) If the election referred to in paragraph (b)
above has been provided for with respect to any Registered
Securities of a series pursuant to Section 3.1, then, unless
otherwise specified pursuant to Section 3.1 with respect to
any such Registered Securities, not later than the fourth
Business Day after the Election Date for each payment date
for such Registered Securities, the Exchange Rate Agent will
deliver to the Company a written notice specifying, in the
currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the
respective aggregate amounts of principal of, premium, if
any, and interest, if any, on such Registered Securities to
be paid on such payment date, and specifying the amounts in
such currency or currencies or currency unit or units so
payable in respect of such Registered Securities as to which
the Holders of Registered Securities denominated in any cur-
rency or currencies or currency unit or units shall have
<PAGE> 43
elected to be paid in another currency or currency unit as
provided in paragraph (b) above. If the election referred
to in paragraph (b) above has been provided for with respect
to any Registered Securities of a series pursuant to Section
3.1, and if at least one Holder has made such election,
then, unless otherwise specified pursuant to Section 3.1, on
the second Business Day preceding such payment date the
Company will deliver to the Trustee (or the applicable
Paying Agent) an Exchange Rate Officers' Certificate in
respect of the Dollar, Foreign Currency or Currencies, ECU
or other currency unit payments to be made on such payment
date. Unless otherwise specified pursuant to Section 3.1,
the Dollar, Foreign Currency or Currencies, ECU or other
currency unit amount receivable by Holders of Registered
Securities who have elected payment in a currency or
currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable
Market Exchange Rate in effect on the second Business Day
(the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding
for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to
a Foreign Currency, ECU or any other currency unit in which
any of the Securities are denominated or payable otherwise
than pursuant to an election provided for pursuant to para-
graph (b) above, then, with respect to each date for the
payment of principal of, premium, if any, and interest, if
any, on the applicable Securities denominated or payable in
such Foreign Currency, ECU or such other currency unit
occurring after the last date on which such Foreign
Currency, ECU or such other currency unit was used (the
"Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was
previously the currency of payment shall, at the Company's
election, resume being the currency of payment on the first
such payment date preceded by 15 Business Days during which
the circumstances which gave rise to the Dollar becoming
such currency no longer prevail). Unless otherwise
specified pursuant to Section 3.1, the Dollar amount to be
paid by the Company to the Trustee or any applicable Paying
Agent and by the Trustee or any applicable Paying Agent to
the Holders of such Securities with respect to such payment
date shall be, in the case of a Foreign Currency other than
a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a Foreign Currency that is a
currency unit, the Dollar Equivalent of the Currency Unit,
in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Sec-
tion 3.1, if the Holder of a Registered Security denominated
in any currency or currency unit shall have elected to be
paid in another currency or currency unit or in other
<PAGE> 44
currencies as provided in paragraph (b) above, and (i) a
Conversion Event occurs with respect to any such elected
currency or currency unit, such Holder shall receive payment
in the currency or currency unit in which payment would have
been made in the absence of such election and (ii) if a
Conversion Event occurs with respect to the currency or
currency unit in which payment would have been made in the
absence of such election, such Holder shall receive payment
in Dollars as provided in paragraph (d) of this Section 3.12
(but, subject to any contravening valid election pursuant to
paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in
clause (i) above, or the payment currency or currency unit
in the absence of such election, in the case of the cir-
cumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency
unit of payment with respect to Holders who have so elected,
but only with respect to payments on payment dates preceded
by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of
the circumstances described in clause (i) above, or the Dol-
lar, in the case of the circumstances described in clause
(ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign
Currency" shall be determined by the Exchange Rate Agent and
shall be obtained for each subsequent payment date by the
Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the
Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit"
shall be determined by the Exchange Rate Agent and, subject
to the provisions of paragraph (h) below, shall be the sum
of each amount obtained by converting the Specified Amount
of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 3.12 the
following terms shall have the following meanings:
A "Component Currency" shall mean any currency
which, on the Conversion Date, was a component currency of
the relevant currency unit, including, but not limited to,
ECU.
<PAGE> 45
"Election Date" shall mean the Regular Record Date
for the applicable series of Registered Securities as
specified pursuant to Section 3.1 by which the written
election referred to in Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or
fractions thereof which such Component Currency represented
in the relevant currency unit, including, but not limited
to, ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered
by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or
more Component Currencies are consolidated into a single
currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single
currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be
a Specified Amount and such single currency shall thereafter
be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more curren-
cies, the Specified Amount of such Component Currency shall
be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former
Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the
relevant currency unit, including, but not limited to, ECU,
a Conversion Event (other than any event referred to above
in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and
is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the
Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such
Component Currency.
All decisions and determinations of the Exchange
Rate Agent regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit, the
<PAGE> 46
Market Exchange Rate and changes in the Specified Amounts as
specified above 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, the
Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency,
currencies or currency units. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee
of any such decision or determination.
In the event that the Company determines in good
faith that a Conversion Event has occurred with respect to a
Foreign Currency, the Company will promptly give written
notice thereof to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent) will promptly thereafter give notice in
the manner provided in Section 1.6 to the affected Holders)
specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect
to ECU or any other currency unit in which Securities are
denominated or payable, the Company will promptly give
written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the
Trustee (or such Paying Agent)) will promptly thereafter
give notice in the manner provided in Section 1.6 to the
affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in
good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount
above has occurred, the Company will similarly give written
notice to the Trustee (or any applicable Paying Agent) and
to the Exchange Rate Agent.
The Trustee of the appropriate series of Securi-
ties shall be fully justified and protected in relying and
acting upon information received by it from the Company and
the Exchange Rate Agent and shall have no duty or obligation
to determine the accuracy or validity of such information.
Section 3.13. Appointment and Resignation of
Exchange Rate Agent. (a) Unless otherwise specified
pursuant to Section 3.1, if and so long as the Securities of
any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than
<PAGE> 47
Dollars, or so long as it is required under any other
provision of this Indenture, then the Company will maintain
with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of
determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued
currency or currencies or currency unit or units into the
applicable payment currency or currency unit for the payment
of principal, premium, if any, and interest, if any,
pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and
no appointment of a successor Exchange Rate Agent pursuant
to this Section shall become effective until the acceptance
of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company
and the Trustee of the appropriate series of Securities
accepting such appointment executed by the successor
Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be
removed or become incapable of acting, or if a vacancy shall
occur in the office of the Exchange Rate Agency for any
cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those
series (it being understood that any such successor Exchange
Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless
otherwise specified pursuant to Section 3.1, at any time
there shall only be one Exchange Rate Agent with respect to
the Securities of any particular series that are originally
issued by the Company on the same date and that are initial-
ly denominated and/or payable in the same currency or cur-
rencies or currency unit or units).
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's Obliga-
tions Under the Indenture. (a) This Indenture shall upon a
Company Request cease to be of further effect with respect
to Securities of or within any series and any coupons
appertaining thereto (except as to (i) rights of
registration, transfer or exchange of such Securities, (ii)
rights of replacement of such Securities which may have been
lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of
principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration), and
<PAGE> 48
rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights, obligations, duties and
immunities of the Trustee hereunder, (v) any rights of the
Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of
the Company under Section 9.2) and the Trustee, upon payment
of all amounts due it under Section 6.9, at the expense of
the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to
such Securities and any coupons appertaining thereto when
(1) either
(A) all such Securities previously authen-
ticated and delivered and all coupons appertaining
thereto (other than (i) such coupons appertaining
to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such
exchange, surrender of which is not required or
has been waived as provided in Section 3.5, (ii)
such Securities and coupons which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (iii)
such coupons appertaining to Bearer Securities
called for redemption and maturing after the
relevant Redemption Date, surrender of which has
been waived as provided in Section 10.6 and (iv)
such Securities and coupons 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 9.3) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in
the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
<PAGE> 49
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies or
currency unit or units in which the Securities of such
series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancella-
tion, for principal, premium, if any, and interest,
with respect thereto, 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and
any predecessor Trustee under Section 6.9, the obligations
of the Company to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section
9.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the
coupons appertaining thereto, if any, 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, premium, if any and any interest for whose
payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
Section 4.3. Applicability of Defeasance Provi-
sions; Company's Option to Effect Defeasance or Covenant
Defeasance. If pursuant to Section 3.1 provision is made
for either or both of (i) defeasance of the Securities of or
<PAGE> 50
within a series under Section 4.4 or (ii) covenant defeas-
ance of the Securities of or within a series under Section
4.5, then the provisions of such Section or Sections, as the
case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as
may be specified pursuant to Section 3.1 with respect to any
Securities, shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with
respect to such Securities and any coupons appertaining
thereto, elect to have Section 4.4 (if applicable) or
Section 4.5 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this
Article.
Section 4.4. Defeasance and Discharge. Upon the
Company's exercise of the option specified in Section 4.3
applicable to this Section with respect to the Securities of
or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such
Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 4.6 are
satisfied (hereinafter "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented
by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of
this Indenture referred to in clause (ii) of this Section,
and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.9, at the
expense of the Company, shall on a Company Order execute
proper instruments acknowledging the same), except the
following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such
Securities and any coupons appertaining thereto to receive,
solely from the trust funds described in Section 4.6(a) and
as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest, if any,
on such Securities or any coupons appertaining thereto when
such payments are due; (ii) the Company's obligations with
respect to such Securities under Sections 3.5, 3.6, 9.2 and
9.3 and with respect to the payment of additional amounts,
if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (iii) the rights, powers,
<PAGE> 51
trusts, duties and immunities of the Trustee hereunder and
(iv) this Article 4. Subject to compliance with this
Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option
under Section 4.5 with respect to such Securities and any
coupons appertaining thereto. Following a defeasance,
payment of such Securities may not be accelerated because of
an Event of Default.
Section 4.5. Covenant Defeasance. Upon the
Company's exercise of the option specified in Section 4.3
applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified
pursuant to Section 3.1, its obligations under any other
covenant, with respect to such Securities and any coupons
appertaining thereto on and after the date the conditions
set forth in Section 4.6 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand,
authorization, direction, notice, waiver, consent or
declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1 and 9.4 or such
other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any
other provision herein or in any other document and such
omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(3) or 5.1(7) or other-
wise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Cove-
nant Defeasance. The following shall be the conditions to
application of Section 4.4 or Section 4.5 to any Securities
of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to
be deposited irrevocably with the Trustee (or another
<PAGE> 52
trustee satisfying the requirements of Section 6.12 who
shall agree to comply with, and shall be entitled to
the benefits of, the provisions of Sections 4.3 through
4.9 inclusive and the last paragraph of Section 9.3
applicable to the Trustee, for purposes of such Sec-
tions also a "Trustee") as trust funds in trust for the
purpose of making the payments referred to in clauses
(x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any
coupons appertaining thereto, with written instructions
to the Trustee as to the application thereof, (A) money
in an amount (in such currency, currencies or currency
unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at
Maturity), or (B) if Securities of such series are not
subject to repayment at the option of Holders, Govern-
ment Obligations 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 referred to in clause (x)
or (y) of this Section 4.6(a), money in an amount or
(C) a combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of indepen-
dent certified public accountants expressed in a
written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, (x) the principal of,
premium, if any, and interest, if any, on such
Securities and any coupons appertaining thereto on the
Maturity of such principal or installment of principal
or interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such
payments are due and payable in accordance with the
terms of this Indenture and such Securities and any
coupons appertaining thereto. Before such a deposit
the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future
date or dates in accordance with Article 10 which shall
be given effect in applying the foregoing.
(b) No Default or Event of Default with respect
to the Securities of that series shall have occurred or
be continuing on the date of such a deposit or shall
occur as a result of such a deposit or, insofar as
Sections 5.1(5) and (6) are concerned, shall occur at
any time during the period ending on the 91st day after
the date of such deposit (it being understood that this
<PAGE> 53
condition shall not be deemed satisfied until the
expiration of such period).
(c) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a
default under, any other material agreement or instru-
ment to which the Company is a party or by which it is
bound.
(d) In the case of an election under Section 4.4,
the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the
effect that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm
that, the Holders of such Securities and any coupons
appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income
tax on the same amount and in the same manner and at
the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(e) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under Section 4.4 or
4.5, as the case may be, will not result in any of the
Company, the Trustee or the trust created by the
Company's deposit hereunder becoming or being deemed to
be an "investment company" under the Investment Company
Act of 1940, as amended.
(f) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent to
the defeasance under Section 4.4 or the covenant
defeasance under Section 4.5 (as the case may be) have
been complied with.
(g) Such defeasance or covenant defeasance shall
be effected in compliance with any additional or
substitute terms, conditions or limitations which may
be imposed on the Company in connection therewith as
contemplated by Section 3.1.
<PAGE> 54
Section 4.7. Deposited Money and Government
Obligations to Be Held in Trust. Subject to the provisions
of the last paragraph of Section 9.3, all money and
Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in
respect of any Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto 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 and any coupons appertaining thereto of all sums
due and to become due thereon in respect of 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.
Unless otherwise specified with respect to any
Security pursuant to Section 3.1, if, after a deposit
referred to in Section 4.6(a) has been made, (i) the Holder
of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or
the terms of such Security to receive payment in a currency
or currency unit other than that in which the deposit
pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated
in Section 3.12(d) or 3.12(e) or by the terms of any
Security in respect of which the deposit pursuant to Section
4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of, premium,
if any, and interest, if any, on such Security as the same
becomes due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such
election) the amount or other property deposited in respect
of such Security into the currency or currency unit in which
such Security becomes payable as a result of such election
or Conversion Event based on the applicable Market Exchange
Rate for such currency or currency unit in effect on the
second Business Day prior to each payment date, or, with
respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the
Conversion Event.
Section 4.8. Repayment to Company. The Trustee
(and any Paying Agent) shall promptly pay to the Company
<PAGE> 55
upon Company Request any excess money or securities held by
them at any time.
Section 4.9. Indemnity for Government Obliga-
tions. The Company shall pay, and shall indemnify the
Trustee against, any tax, fee or other charge imposed on or
assessed against Government Obligations deposited pursuant
to this Article or the principal and interest and any other
amount received on such Government Obligations.
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default. An "Event of
Default" occurs with respect to the Securities of any series
if (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of inter-
est on any Security of that series or any coupon
appertaining thereto or any additional amount payable
with respect to any Security of that series as speci-
fied pursuant to Section 3.1(b)(16) when the same be-
comes due and payable and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of any
installment of the principal of or any premium on any
Security of that series when the same becomes due and
payable, whether at its Maturity or on redemption or
otherwise, or in the payment of a mandatory sinking
fund payment when and as due by the terms of the Secu-
rities of that series;
(3) the Company fails to comply in any material
respect with any of its agreements or covenants in, or
any of the provisions of, this Indenture with respect
to any Security of that series (other than an agree-
ment, covenant or provision for which non-compliance is
elsewhere in this Section specifically dealt with), and
such non-compliance continues for a period of 90 days
after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company
<PAGE> 56
and the Trustee by the Holders of at least 25% in ag-
gregate principal amount of the Outstanding Securities
of the 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;
(4) the Company defaults under any mortgage,
indenture or instrument under which there may be
issued, or by which there may be secured or evidenced,
any Debt (including this Indenture) having an aggregate
principal amount outstanding of at least $50,000,000,
whether such Debt now exists or shall hereafter be
created, and, as a result of such default, such Debt
shall become due and payable, whether by acceleration
or otherwise, and such acceleration shall not be
rescinded, annulled or cured within a period of 30 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
aggregate principal amount of the Outstanding Securi-
ties of that series a written notice specifying such
default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder (it
being understood however, that the Trustee shall not be
deemed to have knowledge of such default under such
agreement or instrument unless a Responsible Officer of
the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of
any such Debt or from the trustee under any such
agreement or other instrument); provided, however, that
if such default under such mortgage, indenture or
instrument is remedied or cured by the Company or
waived by the holders of such Debt, then the Event of
Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or
waived without further action upon the part of either
the Trustee or any of such Holders;
(5) the Company pursuant to or within the meaning
of any Bankruptcy Law (A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or
substantially all of its property; or (D) makes a
general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that (A) is
for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the
liquidation of the Company and the order or decree
remains unstayed and in effect for 60 days; or
<PAGE> 57
(7) there occurs any other Event of Default
provided as contemplated by Section 3.1 with respect to
Securities of that series.
The term "Bankruptcy Law" means any applicable
bankruptcy, insolvency or other similar law now or
hereinafter in effect. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian,
sequestrator or similar official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annul-
ment. If an Event of Default with respect to the Securities
of any series at the time Outstanding occurs and is
continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding
Securities of that series, by written notice to the Company
(and, if given by the Holders, to the Trustee), may declare
the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in
the terms of that series) of and accrued interest, if any,
on all the Securities of that series to be due and payable
and upon any such declaration such principal (or, in the
case of Original Issue Discount Securities or Indexed
Securities, such specified amount) and interest, if any,
shall be immediately due and payable.
At any time after such a declaration of accel-
eration with respect to Securities of any series has been
made and before a judgement 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
aggregate principal amount of the Outstanding Securities of
that series, by written notice to the Trustee, may rescind
and annul such declaration and its consequences if
all existing Defaults and Events of Default with respect to
Securities of that series, other than the non-payment 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 5.7. No such rescission
shall affect any subsequent default or impair any right
consequent thereon.
<PAGE> 58
Section 5.3. Collection of Indebtedness and
Suits for Enforcement by Trustee. The Company covenants
that if
(1) default is made in the payment of any interest
on any Security or coupon, if any, when such interest
becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities or coupons, if
any, the whole amount then due and payable on such Securi-
ties for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal, premium, if
any, and on any overdue interest, at the rate or rates
prescribed therefor in such Securities or coupons, if any,
and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including all amounts due the Trustee, its agents and
counsel under Section 6.9.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or
its creditors, the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any
and all actions authorized under the Trust Indenture Act in
order to have claims of the Holders and the Trustee allowed
in any such proceeding. In particular, the Trustee shall be
authorized 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
<PAGE> 59
Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
6.9.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security or coupon any
plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any
Holder of a Security or coupon thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar
committee.
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities. All rights of action and claims
under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding
relating thereto.
Section 5.6. Delay or Omission Not Waiver. No
delay or omission by the Trustee or any Holder of any
Securities to exercise any right or remedy accruing upon an
Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of
Default.
Section 5.7. Waiver of Past Defaults. The
Holders of not less than a majority in aggregate principal
amount of Outstanding Securities of any series by written
notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any coupons appertaining
thereto a past Default or Event of Default with respect to
that series and its consequences except (i) a Default or
Event of Default in the payment of the principal of,
premium, if any, or interest on any Security of such series
or any coupon appertaining thereto or (ii) in respect of a
covenant or provision hereof which pursuant to Section 8.2
cannot be amended or modified without the consent of the
Holder of each Outstanding Security of such series adversely
affected. Upon any such waiver, such Default shall cease to
<PAGE> 60
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this
Indenture but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders
of not less than a majority in aggregate principal amount of
the Outstanding Securities of each series affected (with
each such series voting as a class) shall have the right to
direct the time, method and place of conducting any pro-
ceeding for any remedy available to the Trustee or exer-
cising any trust or power conferred on it with respect to
Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts
with law or this Indenture, (ii) the Trustee may refuse to
follow any direction that is unduly prejudicial to the
rights of the Holders of Securities of such series not
consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the
Trustee in personal liability without adequate indemnity
having been offered therefor and (iii) the Trustee may take
any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No
Holder of any Security of any series or any coupons
appertaining thereto shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(1) the Holder has previously given written
notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that
series have made a 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 indemnity satisfactory to the Trustee against
any loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of
such notice, request and the offer of indemnity has
failed to institute any such proceedings; and
<PAGE> 61
(5) during such 60 day period, the Holders of a
majority in aggregate principal amount of the Out-
standing Securities of that series have not given to
the Trustee a direction inconsistent with such written
request.
No one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive
Payment. Notwithstanding any other provision of this
Indenture, but subject to Section 9.2, the right of any
Holder of a Security or coupon to receive payment of
principal of, premium, if any, and, subject to Sections 3.5
and 3.7, interest on the Security, on or after the
respective due dates expressed in the Security (or, in case
of redemption, on the redemption dates), and the right of
any Holder of a coupon to receive payment of interest due as
provided in such coupon, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent
of such Holder.
Section 5.11. Application of Money Collected. If
the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order, at the date
or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium,
if any, or interest, upon presentation of the Securities and
coupons, if any, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully
paid:
First: to the Trustee for amounts due under Sec-
tion 6.9;
Second: to Holders of Securities and coupons in
respect of which or for the benefit of which such money
has been collected for amounts due and unpaid on such
Securities for principal of, premium, if any, and
interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on
<PAGE> 62
such Securities for principal, premium, if any, and
interest, respectively; and
Third: to the Company.
The Holders of each series of Securities de-
nominated in ECU, any other currency unit or a Foreign
Currency and any matured coupons relating thereto shall be
entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities
and matured but unpaid interest on such series of Securities
in the currency in which such series of Securities is
denominated into Dollars at the Exchange Rate as of the date
of declaration of acceleration of Maturity of the
Securities.
The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 5.11.
At least 15 days before such record date, the Trustee shall
mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. 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 5.13. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or
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.
<PAGE> 63
Section 5.14. Undertaking for Costs. 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, a court may
require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided,
however, that neither this Section nor the Trust Indenture
Act shall be deemed to authorize any court to require such
an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities
of the Trustee. (a) Except during the continuance of an
Event of Default, the Trustee's duties and responsibilities
under this Indenture shall be governed by Section 315(a) of
the Trust Indenture Act.
(b) In case an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture, and shall use the
same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
Section 6.2. Rights of Trustee. Subject to the
provisions of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any document
believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Trustee
need not investigate any fact or matter stated in the
document.
(b) Any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (other than delivery
of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery
pursuant to Section 3.3, which shall be sufficiently
evidenced as provided therein) and any resolution of
<PAGE> 64
the Board of Directors may be sufficiently evidenced by
a Board Resolution.
(c) Before the Trustee acts or refrains from
acting, it may consult with counsel or require an Of-
ficers' Certificate and/or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on a Board
Resolution, the advice of counsel acceptable to the
Trustee, a certificate of an Officer or Officers deliv-
ered pursuant to Section 1.2, an Officers' Certificate
or an Opinion of Counsel.
(d) The Trustee may act through agents or
attorneys and shall not be responsible for the mis-
conduct or negligence of any agent or attorney ap-
pointed with due care.
(e) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it
reasonably believes to be authorized or within its
rights or powers.
(f) The Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or indemnity deemed
satisfactory by the Trustee against such risk or
liability is not reasonably assured to it.
Section 6.3. Trustee May Hold Securities. The
Trustee, any Paying Agent, any Registrar or any other agent
of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securi-
ties and coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Com-
pany, an Affiliate or Subsidiary with the same rights it
would have if it were not Trustee, Paying Agent, Registrar
or such other agent.
Section 6.4. 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. The
Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed
upon in writing with the Company.
<PAGE> 65
Section 6.5. Trustee's Disclaimer. The recitals
contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representation as to the validity or adequacy of this
Indenture or the Securities or any coupon. The Trustee
shall not be accountable for the Company's use of the
proceeds from the Securities or for monies paid over to the
Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default
occurs and is continuing with respect to the Securities of
any series and if it is known to the Trustee, the Trustee
shall, within 90 days after the Default occurs, transmit by
mail, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, notice of all Defaults
known to it unless such Default shall have been cured or
waived; provided, however, that, except in the case of a
Default in the payment of principal (and premium, if any) or
interest on the Securities of any series, the Trustee may
withhold the notice if and so long as a Responsible Officer
in good faith determines that withholding such notice is in
the interests of Holders of Securities of that series.
Section 6.7. Reports by Trustee to Holders.
Within 60 days after each May 15 of each year commencing
with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section
313(c) of the Trust Indenture Act a brief report dated as of
such May 15 if required by and in compliance with Section
313(a) of the Trust Indenture Act.
Section 6.8. Securityholder Lists. The Trustee
shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the
names and addresses of Holders of Securities of each series.
If the Trustee is not the Registrar, the Company shall
furnish to the Trustee semiannually on or before the last
day of June and December in each year, and at such other
times as the Trustee may request in writing, a list, in such
form and as of such date as the Trustee may reasonably
require, containing all the information in the possession or
control of the Registrar, the Company or any of its Paying
Agents other than the Trustee as to the names and addresses
of Holders of Securities of each such series. If there are
Bearer Securities of any series Outstanding, even if the
Trustee is the Registrar, the Company shall furnish to the
<PAGE> 66
Trustee such a list containing such information with respect
to Holders of such Bearer Securities only. 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 any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 6.9. Compensation and Indemnity. (a)
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it in connection with the
performance of its duties under this Indenture, except any
such expense as may be attributable to its negligence or bad
faith. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee for,
and hold it harmless against, any loss or liability, damage,
claim or reasonable expense including taxes (other than
taxes based upon or determined or measured by the income of
the Trustee) incurred by it arising out of or in connection
with its acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connec-
tion with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall coop-
erate in the defense. The Company need not pay for any
settlement made without its consent, which consent shall not
be unreasonably withheld or delayed.
(c) The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the
Trustee through negligence or bad faith.
(d) To secure the payment obligations of the
Company pursuant to this Section, the Trustee shall have a
lien prior to the Securities of any series on all money or
property held or collected by the Trustee, except that held
in trust to pay principal, premium, if any, and interest on
particular Securities.
<PAGE> 67
When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in
Section 5.1(5) or Section 5.1(6), the expenses (including
the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute
expenses of administration under any applicable Federal or
state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the
resignation or removal of the Trustee and the termination of
this Indenture.
Section 6.10. Replacement of Trustee. (a) The
resignation or removal of the Trustee and the appointment of
a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with
respect to the Securities of any 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 Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series
may remove the Trustee with respect to that series by so
notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the Company's
consent.
(d) If at any time:
(1) the Trustee fails to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.12 hereunder or Section 310(a) of the Trust
Indenture Act and shall fail to resign after written
request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security
for at least six months; or
<PAGE> 68
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver or
public officer takes charge of the Trustee or its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company, by
or pursuant to Board Resolution, shall promptly appoint a
successor Trustee 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 or removal, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with
the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so
appointed by the Company or the Holders 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.
Section 6.11. Acceptance of Appointment by
Successor. (a) In case of the appointment hereunder of a
<PAGE> 69
successor Trustee with respect to all Securities, every such
successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument ac-
cepting such appointment. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and
the successor Trustee, without further act, deed or convey-
ance, shall become vested with all the rights, powers and
duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee
shall, upon payment of all amounts due it under Section 6.9,
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 such successor Trustee shall execute and deliver
an indenture supplemental hereto wherein such successor
Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such 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, (ii) if the retiring Trustee is not re-
tiring 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 (iii) shall add to or change any of the provi-
sions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder admin-
istered by any other such Trustee and upon the execution and
delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
<PAGE> 70
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any suc-
cessor Trustee, such retiring Trustee shall, upon payment of
all amounts due it under Section 6.9, duly assign, transfer
and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under the
Trust Indenture Act.
(e) 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 in the manner provided for notices to the Holders of
Securities in Section 1.6. 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. If the Company fails to give such notice within
thirty days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be
given at the expense of the Company.
Section 6.12. Eligibility; Disqualification. (a)
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, shall be a bank or trust company or
corporation organized and doing business and in good
standing under the laws of the United States or of any State
thereof or the District of Columbia and shall have a
combined capital and surplus of at least $75,000,000. If
such company or corporation publishes reports of condition
at least annually, pursuant to law or the requirements of
Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such
company or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report
<PAGE> 71
of condition so published. 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 specified in this Article.
(b) If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture
Act and this Indenture and the Company shall take prompt
action to have a successor Trustee appointed in the manner
provided herein. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to
in the second to the last paragraph of Section 310(b) of the
Trust Indenture Act or any equivalent successor provision.
Section 6.13. Merger, Conversion, Consolidation
or Succession to Business. Any corporation into which the
Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticat-
ing 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 6.14. Appointment of Authenticating
Agent. 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 original
issue, exchange, registration of transfer or partial
redemption thereof, 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Respon-
sible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication
<PAGE> 72
and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be
provided pursuant to Section 3.1, shall at all times be a
bank or trust company or corporation organized and doing
business and in good standing under the laws of the United
States or of 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 authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so pub-
lished. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Secu-
rities may at any time resign by giving written notice of
resignation to the Trustee for such series and to the Com-
pany. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by
giving written notice of termination 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
<PAGE> 73
for such series may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give
notice of such appointment in the manner set forth in Sec-
tion 1.6, at the expense of the Company, to all Holders of
Securities of the series with respect to which such Authen-
ticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services
under this Section.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of
such series may have endorsed thereon, in addition to or in
lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series de-
scribed in the within-mentioned Indenture.
______________________________,
as Trustee
By ___________________________ ,as
Authenticating Agent
By ____________________________
Authorized Signatory
ARTICLE 7
Consolidation, Merger or Sale by the Company
Section 7.1. Consolidation, Merger or Sale of
Assets Permitted. The Company shall not consolidate or
merge with or into, or transfer or lease all or substan-
tially all of its assets to, any Person unless:
<PAGE> 74
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
to which such transfer or lease shall have been made,
is an entity organized and existing under the laws of
the United States, any State thereof or the District of
Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or
to which such transfer or lease shall have been made,
assumes by supplemental indenture all the obligations
of the Company under the Securities and this Indenture;
and
(3) immediately after giving effect to the
transaction no Default or Event of Default exists.
The Company shall deliver to the Trustee prior to
the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply
with this Indenture and that all conditions precedent to the
consummation of the transaction under this Indenture have
been met.
In the event of the assumption by a successor
Person as provided in clause (2) above, such successor
Person shall succeed to and be substituted for, and may
exercise every right and power of, the Company hereunder and
under the Securities and any coupons appertaining thereto
with the same effect as if it had been named hereunder and
thereunder and all such obligations of the Company shall
terminate.
ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without
Consent of Holders. Without the consent of any Holders, the
Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into
indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any such successor
<PAGE> 75
of the covenants and obligations of the Company herein
and in the Securities and any coupons appertaining
thereto; or
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
facilitate the issuance or administration of Bearer
Securities (including, without limitation, to provide
that Bearer Securities may be registrable as to
principal only) or to facilitate the issuance or
administration of Securities in global form; or
(5) to change or eliminate any of the provisions
of this Indenture in respect of one or more series of
Securities, provided that any such change or
elimination shall become effective only when there is
no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities
of any series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to
add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) if allowed without penalty under applicable
laws and regulations, to permit payment in the United
States (including any of the States thereof and the
District of Columbia), its territories, its possessions
<PAGE> 76
and other areas subject to its jurisdiction of
principal, premium, if any, or interest, if any, on
Bearer Securities or coupons, if any; or
(10) 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,
provided such action shall not adversely affect in any
material respect the interests of the Holders of
Securities of any series; or
(11) to cure any ambiguity or correct any mistake.
Section 8.2. Supplemental Indentures With
Consent of Holders. With the written consent of the Holders
of not less than a majority of the aggregate principal
amount of the Outstanding Securities adversely affected by
such supplemental indenture (with the Securities of each
series voting as a class), the Company and the Trustee may
enter into an indenture or indentures supplemental hereto to
add any provisions to or to change or eliminate any
provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders
of such Securities; provided, however, that without the con-
sent of the Holder of each Outstanding Security affected
thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal
of or premium, if any, on, or any installment of
principal of or premium, if any, or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon
the redemption thereof, or change the manner in which
the amount of any principal thereof or premium, if any,
or interest thereon is determined or reduce the amount
of the principal of any Original Issue Discount Secu-
rity or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the currency
or currency unit in which any Securities or any premium
or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such pay-
ment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption
Date);
(2) reduce the percentage in principal amount of
the Outstanding Securities affected thereby, the
<PAGE> 77
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;
(3) change any obligation of the Company to
maintain an office or agency in the places and for the
purposes specified in Section 9.2; or
(4) make any change in this Section 8.2 except to
increase any percentage or to provide that certain
other provisions of this Indenture cannot be modified
or waived with the consent of the Holders of each
Outstanding Security affected thereby.
A supplemental indenture which changes or elimi-
nates 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 Inden-
ture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed
supplemental indenture, but it is sufficient if they consent
to the substance thereof.
Section 8.3. Compliance with Trust Indenture
Act. Every amendment to this Indenture or the Securities of
one or more series shall be set forth in a supplemental
indenture that complies with the Trust Indenture Act as then
in effect.
Section 8.4. Execution of Supplemental Inden-
tures. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this
Article or the modification thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
<PAGE> 78
Section 8.5. 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 and of any coupon appertaining thereto
shall be bound thereby.
Section 8.6. Reference in Securities to Sup-
plemental Indentures. Securities, including any coupons, 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 including any coupons of any
series so modified as to conform, in the opinion of 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
including any coupons of such series.
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, if
any, and Interest. The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it
will duly and punctually pay the principal of, premium, if
any, and interest together with additional amounts, if any,
on the Securities of that series in accordance with the
terms of the Securities of such series, any coupons
appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue
Code of 1986, as amended, by any Person from a payment to
any Holder of Securities, after having requested such Holder
to provide applicable information that would allow such
Person to make such payment without withholding, shall be
considered as having been paid by the Company to such Holder
for purposes of this Indenture. An installment of prin-
cipal, premium, if any, or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds
on that date money designated for and sufficient to pay the
installment.
Section 9.2. Maintenance of Office or Agency.
If Securities of a series are issued as Registered Secu-
<PAGE> 79
rities, the Company will maintain in each Place of Payment
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 sur-
rendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain, (i) subject to any laws or
regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside
the United States where Securities of that series and
related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that
series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or
any other required city located outside the United States,
as the case may be, so long as the Securities of that series
are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside
the United States, where Securities of that series may be
surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and
any change in the location, of any such office or agency.
If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Sec-
tion 3.1, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of
the Company in the United States, by check mailed to any
address in the United States, by transfer to an account
located in the United States or upon presentation or
surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to
an account located outside the United States; provided,
however, that, if the Securities of a series are denominated
<PAGE> 80
and payable in Dollars, payment of principal of and any
premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the
Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or
other similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities
(including any coupons, if any) of one or more series may be
presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an
office or agency in each Place of Payment for Securities
(including any coupons, if any) of any series for such
purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Sec-
tion 3.1, the Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be
Held in Trust; Unclaimed Money. If the Company shall at any
time act as its own Paying Agent with respect to any series
of Securities and any coupons appertaining thereto, it will,
on or before each due date of the principal of, 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,
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 in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any coupons
appertaining thereto, it will, prior to each due date of the
principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
<PAGE> 81
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 provi-
sions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of, 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,
premium, if any, or interest on the Securities; 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 terms set forth in this Inden-
ture; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all fur-
ther 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 any principal, premium or interest on any Security of any
series and remaining unclaimed for two years after such
principal, 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 and coupon, if any,
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 in the name and at the expense of
the Company cause to be published once, in a newspaper
<PAGE> 82
published in the English language, customarily published on
each Business Day and of general circulation in The City of
New York, or cause to be mailed to such Holder, notice that
such money remains unclaimed and that, after a date speci-
fied 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 9.4. Corporate Existence. Subject to
Article 7, the Company will at all times do or cause to be
done all things necessary to preserve and keep in full force
and effect its corporate existence and its rights and fran-
chises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or
franchise of the Company if, in the opinion of the Company,
such abandonment or termination is desirable in the conduct
of the business of the Company and not prejudicial in any
material respect to the Holders of the Securities.
Section 9.5. Reports by the Company. The
Company covenants:
(a) to file with the Trustee, within 30 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; or, if the Company is not required to file
information, documents or reports pursuant to either of
such sections, then to 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 Securities Exchange Act of 1934, as amended,
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;
(b) to file with the Trustee and the Commission,
in accordance with the 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 provided for in this Indenture, as may be
<PAGE> 83
required from time to time by such rules and
regulations; and
(c) to transmit to all Holders of Securities,
within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in
section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports
required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.5, as may be
required by rules and regulations prescribed from time
to time by the Commission.
Section 9.6. Annual Review Certificate. The
Company covenants and agrees to deliver to the Trustee,
within 120 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer
of the Company stating that a review of the activities of
the Company during such year and of performance under this
Indenture has been made under his or her supervision and to
the best of his or her knowledge, based on such review, the
Company has fulfilled all of its obligations under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation,
specifying each such default known to him or her and the
nature and status thereof. For purposes of this Section
9.6, such compliance shall be determined without regard to
any period of grace or requirement of notice provided under
this Indenture.
Section 9.7. Books of Record and Account. The
Company will keep proper books of record and account, either
on a consolidated or individual basis. The Company shall
cause its books of record and account to be examined, either
on a consolidated or individual basis, by one or more firms
of independent public accountants not less frequently than
annually. The Company shall prepare its financial
statements in accordance with generally accepted accounting
principles.
ARTICLE 10
Redemption
Section 10.1. Applicability of Article. Secu-
rities (including coupons, if any) of any series which are
<PAGE> 84
redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of
any series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to
Trustee. The election of the Company to redeem any Secu-
rities, including coupons, if any, shall be evidenced by or
pursuant to a Board Resolution. In the case of any
redemption at the election of the Company of less than all
the Securities or coupons, if any, of any series, the
Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant
to an election of the Company which is subject to a
condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or
condition.
Section 10.3. Selection of Securities to Be
Redeemed. Unless otherwise specified as contemplated by
Section 3.1, if less than all the Securities (including
coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the
Redemption Date, shall select the Securities of the series
to be redeemed in such manner as the Trustee shall deem fair
and appropriate. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have
not previously been called for redemption and may provide
for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple
thereof) of the principal amount of Securities, including
coupons, if any, 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 by the Trustee for
redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be
redeemed. If the Company shall so direct, Securities
registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Securities
selected for redemption.
<PAGE> 85
For purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the
redemption of Securities (including coupons, if any) shall
relate, in the case of any Securities (including coupons, if
any) redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities (including
coupons, if any) which has been or is to be redeemed.
Section 10.4. Notice of Redemption. Unless
otherwise specified as contemplated by Section 3.1, notice
of redemption shall be given in the manner provided in Sec-
tion 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to
be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities
of a series are to be redeemed, the identification
(and, in the case of partial redemption, the principal
amounts) of the particular Security or Securities to be
redeemed;
(4) in case any Security is to be redeemed in
part only, the notice which relates to such Security
shall state that on and after the Redemption Date, upon
surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of
authorized denominations for the principal amount
thereof remaining unredeemed;
(5) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities
with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for
payment for the Redemption Price;
(6) that Securities of the series called for
redemption and all unmatured coupons, if any, apper-
taining thereto must be surrendered to the Paying Agent
to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption
Price will become due and payable upon each such
Security, or the portion thereof, to be redeemed and,
<PAGE> 86
if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is from a sinking fund,
if such is the case;
(9) that, unless otherwise specified in such
notice, Bearer Securities of any series, if any,
surrendered for redemption must be accompanied by all
coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will
be deducted from the Redemption Price, unless security
or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed
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 10.5. Deposit of Redemption Price. On or
prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, which it may not do in the
case of a sinking fund payment under Article 11, segregate
and hold in trust as provided in Section 9.3) an amount of
money in the currency or currencies (including currency unit
or units) in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest
accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any
redemption obligation from being satisfied by delivering and
crediting Securities (including Securities redeemed
otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting against
such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 10.6. Securities Payable on Redemption
Date. Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein
<PAGE> 87
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 and the coupons for any such interest appertaining
to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in
the next succeeding paragraph, upon surrender of any such
Security, including coupons, if any, 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 on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the
United States and its possessions (except as otherwise
provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and
surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest on Registered Secu-
rities that are due and payable on Interest Payment Dates
that are on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Dates according to
their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing
after the Redemption Date, such Bearer Security may be paid
after deducting from the Redemption Price an amount equal to
the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or
agency located outside of the United States (except as
otherwise provided pursuant to Section 9.2) and, unless
otherwise specified as contemplated by Section 3.1, only
upon presentation and surrender of those coupons.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
<PAGE> 88
(and premium, if any) shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the
Security.
Section 10.7. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part at any
Place of Payment therefor (with, if the Company or the
Trustee so required, 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), the Company shall
execute and the Trustee shall authenticate and deliver to
the Holder of that Security, without service charge, a new
Security or Securities of the same series, having the same
form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the
unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article. The
provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 3.1
for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.2. Each sinking fund
payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of
such series.
Section 11.2. Satisfaction of Sinking Fund
Payments with Securities. The Company (i) may deliver
Outstanding Securities of a series (other than any pre-
viously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured coupons
appertaining thereto and (ii) may apply as a credit
<PAGE> 89
Securities of a series which have been either (A) 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 or (B) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, 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 11.3. Redemption of Securities for
Sinking Fund. Not less than 45 days prior to each sinking
fund payment date for any series of Securities, the Company
will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satis-
fied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 11.2 and will
also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the
manner specified in Section 10.3 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
10.4. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the
manner stated in Sections 10.6 and 10.7.
ARTICLE 12
Meetings of Holders of Securities
Section 12.1. Purposes for Which Meetings May Be
Called. A meeting of Holders of Securities of any series
may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand,
authorization, direction, notice, consent, election, waiver
<PAGE> 90
or other action provided by this Indenture to be made, given
or taken by Holders of Securities of such series.
Section 12.2. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in
Section 12.1, to be held at such time and at such place in
The City of New York or in such other place as may be
acceptable to the Company. Notice of every meeting of
Holders of Securities, setting forth the time and the place
of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to
a Board Resolution, or the Holders of at least 33 % in
principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose
specified in Section 12.1, by written request setting forth
in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
in the amount specified, as the case may be, may determine
the time and the place in The City of New York or such other
place as may be acceptable to the Company for such meeting
and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section.
Section 12.3. Persons Entitled to Vote at
Meetings. To be entitled to vote at any meeting of Holders
of Securities of any series, a Person shall be (a) a Holder
of one or more Outstanding Securities of such series, or (b)
a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of
such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the
Company and its counsel.
Section 12.4. Quorum; Action. The Persons
entitled to vote a majority in principal amount of the
<PAGE> 91
Outstanding Securities of the applicable series shall
constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period not less than 10 days
as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the
reconvening of any such adjourned meeting shall be given as
provided in Section 12.2(a), except that such notice need be
given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened.
Subject to the foregoing, at the reconvening of
any meeting adjourned for a lack of a quorum, the Persons
entitled to vote 25% in principal amount of the Outstanding
Securities of the applicable series at the time shall
constitute a quorum for the taking of any action set forth
in the notice of the original meeting. Notice of the
reconvening of a meeting adjourned for lack of a quorum
shall state expressly the percentage of the principal amount
of the Outstanding Securities of such series which shall
constitute a quorum.
At a meeting or an adjourned meeting duly re-
convened and at which a quorum is present as aforesaid, any
resolution and all matters (except as limited by the proviso
to Section 8.2) shall be effectively passed and decided if
passed or decided by the Persons entitled to vote not less
than the lesser of (i) a majority in principal amount of
Outstanding Securities of the applicable series and (ii) 66
% in principal amount of Outstanding Securities of such
series represented and voting at such meeting; provided,
however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, election,
waiver or other Act which this Indenture expressly provides
may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid by the
affirmative vote of the lesser of (i) the Holders of such
specified percentage in principal amount of the Outstanding
Securities of such series and (ii) a majority in principal
amount of Outstanding Securities of such series represented
and voting at such meeting or adjourned meeting.
<PAGE> 92
Any resolution passed or decisions taken at any
meeting of Holders of Securities of any series duly held in
accordance with this Section shall be binding on all the
Holders of Securities of such series and coupons, whether or
not present or represented at the meeting.
In the event that any meeting shall be adjourned
for lack of a quorum or that, at any meeting at which a
quorum is present, any proposed resolution or decision shall
not be passed or taken because the Holders of the percentage
of Outstanding Securities of the series needed to approve
such resolution or decision did not vote in favor of such
resolution or decision, the principal amount of Outstanding
Securities of such series represented at such meeting and
voting in favor of such resolution or decision may be
counted for purposes of calculating whether the consent of
the Holders of the percentage of Outstanding Securities of
such series needed in order to make, give or take any re-
quest, demand, authorization, direction, notice, consent,
election, waiver or other action has been obtained, and such
vote shall constitute the consent thereto of such Holders.
Section 12.5. Determination of Voting Rights;
Conduct and Adjournment of Meetings. (a) Notwithstanding
any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examina-
tion of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct
of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the
holding of Securities of a series shall be proved in the
manner specified in Section 1.4 and the appointment of any
proxy shall be provided in the manner specified in Section
1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 1.4 to certify to the holding
of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writ-
ing, appoint a temporary chairman (which may be a Responsi-
ble Officer of the Trustee) of the meeting, unless the meet-
ing shall have been called by the Company or by Holders of
<PAGE> 93
Securities of a series as provided in Section 12.2(b), in
which case the Company or the Holders of Securities of such
series calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Security or
proxy shall be entitled to one vote for each U.S. $5,000
principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities of a
series duly called pursuant to Section 12.2 at which a
quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without
further notice.
Section 12.6. Counting Votes and Recording Action
of Meetings. The vote upon any resolution submitted to any
meeting of Holders of Securities of any series shall be by
written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities held or repre-
sented by them. The permanent chairman of the meeting shall
appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting its verified
written report of all votes cast at the meeting. A record
of the proceedings of each meeting of Holders of Securities
shall be prepared by the applicable secretary of the meeting
and there shall be attached to said record the original
report of the inspector of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowl-
edge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided
in Section 12.2 and, if applicable, Section 12.4. At least
two copies of such record shall be signed and verified by
the affidavits of the permanent chairman and secretary of
the meeting and one copy thereof shall be delivered to the
<PAGE> 94
Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
__________________________
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
<PAGE> 95
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
INFINITY BROADCASTING CORPORATION
By:________________________
Title:
[Seal]
Attest:
________________________
Secretary
___________________________
By:___________________________
Title:
[Seal]
Attest:
_________________________
Title:
______________________________________________________________________________
INFINITY BROADCASTING CORPORATION
to
_____________________________, Trustee
SUBORDINATED INDENTURE
_______________________________
Dated as of ______________, 1995
_______________________________
Providing for Issuance of
Subordinated Debt Securities in Series
______________________________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions and Other Provisions
of General Application . . . . . . . . .1
1.1. Definitions . . . . . . . . . . . . . . . . .1
1.2. Compliance Certificates and Opinions. . . . 13
1.3. Form of Documents Delivered to Trustee. . . 14
1.4. Acts of Holders . . . . . . . . . . . . . . 15
1.5. Notices, etc., to Trustee and Company . . . 17
1.6. Notice to Holders; Waiver . . . . . . . . . 17
1.7. Headings and Table of Contents. . . . . . . 18
1.8. Successor and Assigns . . . . . . . . . . . 19
1.9. Separability. . . . . . . . . . . . . . . . 19
1.10. Benefits of Indenture . . . . . . . . . . . 19
1.11. Governing Law . . . . . . . . . . . . . . . 19
1.12. Legal Holidays. . . . . . . . . . . . . . . 19
ARTICLE 2 Security Forms . . . . . . . . . . . . 20
2.1. Forms Generally . . . . . . . . . . . . . . 20
2.2. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . .21
2.3. Securities in Global Form. . . . . . . . . .21
2.4. Form of Legend for Securities
in Global Form. . . . . . . . . . . . . . . 22
ARTICLE 3 The Securities . . . . . . . . . . . . 22
3.1. Amount Unlimited; Issuable in Series. . . . 22
3.2. Denominations . . . . . . . . . . . . . . . 27
3.3. Execution, Authentication, Delivery and
Dating. . . . . . . . . . . . . . . . . . .27
3.4. Temporary Securities. . . . . . . . . . . . 31
3.5. Registration, Transfer and Exchange . . . . 32
3.6. Replacement Securities. . . . . . . . . . . 37
3.7. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . ..39
3.8. Persons Deemed Owners. . . . . . . . . . . .41
3.9. Cancellation. . . . . . . . . . . . . . . . 42
3.10. Computation of Interest . . . . . . . . . . 42
3.11. CUSIP Numbers . . . . . . . . . . . . . . . 42
3.12. Currency and Manner of Payment in
Respect of Securities . . . . . . . . . . . 42
3.13. Appointment and Resignation of
Exchange Rate Agent . . . . . . . . . . . . 48
ARTICLE 4 Satisfaction, Discharge and Defeasance 49
4.1. Termination of Company's Obligations Under
the Indenture. . . . . . . . . . . . . . . .49
4.2. Application of Trust Funds. . . . . . . . . 51
4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . 51
4.4. Defeasance and Discharge. . . . . . . . . . 51
4.5. Covenant Defeasance . . . . . . . . . . . . 52
4.6. Conditions to Defeasance or Covenant
Defeasance. .. . .. . . . . . . . . . . .53
4.7. Deposited Money and Government
Obligations to Be Held in Trust . . . . . . 55
4.8. Repayment to Company. . . . . . . . . . . . 56
4.9. Indemnity for Government Obligations. . . . 56
ARTICLE 5 Defaults and Remedies. . . . . . . . . 57
5.1. Events of Default . . . . . . . . . . . . . 57
5.2. Acceleration; Rescission and Annulment. . . 58
5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . .59
5.4. Trustee May File Proofs of Claim. . . . . . 59
5.5. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . 60
5.6. Delay or Omission Not Waiver. . . . . . . . 60
5.7. Waiver of Past Defaults . . . . . . . . . . 60
5.8. Control by Majority . . . . . . . . . . . . 61
5.9. Limitation on Suits by Holders. . . . . . . 61
5.10. Rights of Holders to Receive Payment. . . . 62
5.11. Application of Money Collected. . . . . . . 62
5.12. Restoration of Rights and Remedies. . . . . 63
5.13. Rights and Remedies Cumulative. . . . . . . 63
5.14. Undertaking for Costs . . . . . . . . . . . 64
ARTICLE 6 The Trustee. . . . . . . . . . . . . . 64
6.1. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . . . . . 64
6.2. Rights of Trustee. . . . . . . . . . . . . .64
6.3. Trustee May Hold Securities . . . . . . . . 65
6.4. Money Held in Trust . . . . . . . . . . . . 65
6.5. Trustee's Disclaimer. . . . . . . . . . . . 66
6.6. Notice of Defaults. . . . . . . . . . . . . 66
6.7. Reports by Trustee to Holders.. . . . . . . 66
6.8. Securityholder Lists. . . . . . . . . . . . 66
6.9. Compensation and Indemnity. . . . . . . . . 67
6.10. Replacement of Trustee. . . . . . . . . . . 68
6.11. Acceptance of Appointment by Successor. . . 70
6.12. Eligibility; Disqualification . . . . . . . 71
6.13. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . 72
6.14. Appointment of Authenticating Agent . . . . 72
ARTICLE 7 Consolidation, Merger or Sale by
the Company . . . . . . . . . . . . . . . . 74
7.1. Consolidation, Merger or Sale of Assets
Permitted. . . . . .. . . . . .. . . . . . 74
ARTICLE 8 Supplemental Indentures. . . . . . . . 75
8.1. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . 75
8.2. Supplemental Indentures With Consent of
Holders. . . . . . . . . . . . . . . . . . .77
8.3. Compliance with Trust Indenture Act. . . . .78
8.4. Execution of Supplemental Indentures. . . . 79
8.5. Effect of Supplemental Indentures.. . . . . 79
8.6. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . ..79
ARTICLE 9 Covenants. . . . . . . . . . . . . . . 79
9.1. Payment of Principal, Premium, if any, and
Interest. . . . . . . . . . . . . . . . . . 79
9.2. Maintenance of Office or Agency . . . . . . 80
9.3. Money for Securities Payments to Be
Held in Trust; Unclaimed Money. . . . . . . 81
9.4. Corporate Existence . . . . . . . . . . . . 83
9.5. Reports by the Company. . . . . . . . . . . 83
9.6. Annual Review Certificate . . . . . . . . . 84
9.7. Books of Record and Account . . . . . . . . 84
ARTICLE 10 Redemption. . . . . . . . . . . . . . . . . 85
10.1. Applicability of Article. . . . . . . . . . 85
10.2. Election to Redeem; Notice to Trustee . . . 85
10.3. Selection of Securities to Be Redeemed. . . 85
10.4. Notice of Redemption. . . . . . . . . . . . 86
10.5. Deposit of Redemption Price . . . . . . . . 87
10.6. Securities Payable on Redemption Date . . . 88
10.7. Securities Redeemed in Part . . . . . . . . 89
ARTICLE 11 Sinking Funds . . . . . . . . . . . . . . . 89
11.1. Applicability of Article. . . . . . . . . . 89
11.2. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . 90
11.3. Redemption of Securities for Sinking
Fund. . . . . . . . . . . . . . . . . . . . 90
ARTICLE 12 Meetings of Holders of Securities . . . . . 91
12.1. Purposes for Which Meetings May Be
Called. . . . . . . . . . . . . . . . . . . 91
12.2. Call, Notice and Place of Meetings. . . . . 91
12.3. Persons Entitled to Vote at Meetings. . . . 91
12.4. Quorum; Action. . . . . . . . . . . . . . . 92
12.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . .93
12.6. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . 94
ARTICLE 13 Subordination . . . . . . . . . . . . . . . 95
13.1. Agreement to Subordinate. . . . . . . . . . 95
13.2. Liquidation; Dissolution; Bankruptcy. . . . 96
13.3. Default on Senior Indebtedness. . . . . . . 98
13.4. Securities May Be Paid Prior to
Dissolution, Etc. . . . . . . . . . . . . .100
13.5. When Distribution Must Be Paid Over . . . .101
13.6. Notices by Company. . . . . . . . . . . . .101
13.7. Subrogation . . . . . . . . . . . . . . . .101
13.8. Relative Rights . . . . . . . . . . . . . .102
13.9. Subordination May Not Be Impaired by
Company . . . . . . . . . . . . . . . . . .102
13.10. Distribution or Notice to Representative. .102
13.11. Rights of Trustee and Paying Agent. . . . .103
Reconciliation and tie between Indenture, dated as of ________,
1995 and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
___________________ _________
310(a)(1). . . . . . . . . . . . . . . . . . 6.12
(a)(2). . . . . . . . . . . . . . . . . . 6.12
(a)(3). . . . . . . . . . . . . . . . . . TIA
(a)(4). . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . 6.10; 6.12; TIA
311(a) . . . . . . . . . . . . . . . . . . . TIA
(b) . . . . . . . . . . . . . . . . . . . TIA
312(a) . . . . . . . . . . . . . . . . . . . 6.8
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . TIA
313(a) . . . . . . . . . . . . . . . . . . . 6.7; TIA
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . TIA
(d) . . . . . . . . . . . . . . . . . . . TIA
314(a) . . . . . . . . . . . . . . . . . . . 9.5; 9.6; TIA
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . 1.2
(c)(2). . . . . . . . . . . . . . . . . . 1.2
(c)(3). . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . TIA
(f) . . . . . . . . . . . . . . . . . . . TIA
315(a) . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . 6.6
(c) . . . . . . . . . . . . . . . . . . . 6.1
(d)(1). . . . . . . . . . . . . . . . . . TIA
(d)(2). . . . . . . . . . . . . . . . . . TIA
(d)(3). . . . . . . . . . . . . . . . . . TIA
(e) . . . . . . . . . . . . . . . . . . . TIA
316(a)(last sentence). . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . . 5.2; 5.8
(a)(1)(B) . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . 5.9; 5.10
(c) . . . . . . . . . . . . . . . . . . . TIA
317(a)(1). . . . . . . . . . . . . . . . . . 5.3
(a)(2). . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . 9.3
318(a) . . . . . . . . . . . . . . . . . . . 1.11
(b) . . . . . . . . . . . . . . . . . . . TIA
(c) . . . . . . . . . . . . . . . . . . . 1.11; TIA
This reconciliation and tie section does not constitute part
of the Indenture.
INDENTURE, dated as of _________, 1995, from INFINITY
BROADCASTING CORPORATION, a Delaware corporation (the
"Company"), to _________, Trustee, a _______ banking corporation
(the "Trustee").
Recitals
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as
herein provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable
benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1. Definitions. (a) For all purposes of
this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles as in effect from
time to time; and
<PAGE> 2
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Affiliate" of any specified Person means any Person
directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person.
For 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays
or holidays. Whenever successive publications in an Authorized
Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized
Newspapers.
"Bearer Security" means any Security issued hereunder which
is payable to bearer.
"Board" or "Board of Directors" means the Board of
Directors of the Company, or any duly authorized committee
thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, 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
the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law,
regulation or executive order to close.
<PAGE> 3
"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 Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party 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 means such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two
Officers, one of whom must be the Chairman of the Board, the
Co-Chairman of the Board, the President and Chief Executive
Officer, the Vice President-Finance and Chief Financial Officer
or the Treasurer of the Company.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the issuer of such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Communities or (iii) any currency unit other than
the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee in
[New York, New York] at which at any particular time its
corporate trust business shall be principally administered, which
office at the date hereof is located at ______________,
Attention: ___________.
"Credit Agreement" means the Second Amended and Restated
Credit Agreement, dated as of December 22, 1994, among the
Company, each of the lenders identified therein (collectively,
the "Banks"), The Chase Manhattan Bank (National Association), as
administrative agent for the Banks, Bank of America Illinois,
<PAGE> 4
Bank of Montreal, The Bank of New York, Chemical Bank, Campagnie
Financiere de cic et de l'Union Europeenne, The First National
Bank of Boston and National Westminister Bank USA, as co-agents
for the Banks, and Chemical Bank, as collateral agent for the
Banks, as the same may be amended, supplemented, waived,
otherwise modified, refinanced, replaced or renewed from time to
time.
"currency unit" for all purposes of this Indenture shall
include any composite currency.
"Debt" means (i) any liability of any entity (A)for borrowed
money, or under any reimbursement obligation relating to a letter
of credit (other than letters of credit obtained in the ordinary
course of business), or (B) evidenced by a bond, note, debenture
or similar instrument (including a purchase money obligation)
given in connection with the acquisition of any businesses,
properties or assets of any kind or with services incurred in
connection with capital expenditures, or (C) for the payment of
money relating to a capitalized lease obligation; (ii) any
liability of others described in the preceding clause (i) that
the entity has guaranteed or that is otherwise its legal
liability; (iii) Interest Protection Agreements secured by the
collateral securing the Credit Agreement in a notional amount not
exceeding the aggregate principal amount outstanding under the
Credit Agreement; and (iv) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (i), (ii) and (iii)
above, provided that Debt shall not include accounts payable or
liabilities to trade creditors of any entity.
"Default" means any event which is, or after notice or
passage of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in
global form, means the Person designated as Depositary by the
Company pursuant to Section 3.1 until a successor Depositary
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is
more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States as at the
time of payment is legal tender for the payment of public and
private debts.
<PAGE> 5
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Exchange Rate Agent", when used with respect to Securities
of or within any series, means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, a New York
Clearing House bank designated pursuant to Section 3.1 or Section
3.13.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar or Foreign Currency
amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the
lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series
on the basis of such Market Exchange Rate or the applicable bid
quotation, signed by the Chairman of the Board, the Co-Chairman
of the Board, the President and Chief Executive Officer, the Vice
President-Finance and Chief Financial Officer or the Treasurer of
the Company.
"Foreign Currency" means any currency issued by the
government of one or more countries other than the United States
or by any recognized confederation or association of such
governments.
"Government Obligations" means securities which are (i)
direct obligations of the United States or, if specified as
contemplated by Section 3.1, the government which issued the
currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United
<PAGE> 6
States or, if specified as contemplated by Section 3.1, such
government which issued the foreign currency in which the
Securities of a particular series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government, which,
in either case, 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 Government Obligation or a specific payment of interest
on or principal of any such 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 Government Obligation evidenced by
such depository receipt.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of a coupon appertaining thereto and, with respect to
a Registered Security, a Person in whose name a Security is
registered on the Register.
"Indenture" means this Indenture as originally executed or
as amended, waived or supplemented from time to time and shall
include and incorporate by reference the forms and terms of
particular series of Securities established as contemplated
hereunder.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
maturity, means interest payable after maturity and, when used
with respect to any other Security, means the interest payable
thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Interest Protection Agreement" shall mean any interest rate
swap, cap, collar or similar agreement or arrangement designed to
protect the Company or any of its Subsidiaries against
fluctuations in interest rates.
"Market Exchange Rate" means, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, (i) for
any conversion involving a currency unit on the one hand and
<PAGE> 7
Dollars or any Foreign Currency on the other, the exchange rate
between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section
3.1 for the Securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon buying
rate for such Foreign Currency for cable transfers quoted in New
York City as certified for customs purposes by the Federal
Reserve Bank of New York and (iii) for any conversion of one
Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other
principal market for Dollars or such purchased Foreign Currency,
in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to
Section 3.1, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or
currency unit in question (which may include any such bank acting
as Trustee under this Indenture), or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one
market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used
in respect of such currency or currency unit shall be that upon
which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or
currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Co-Chairman
of the Board, the President and Chief Executive Officer, the Vice
<PAGE> 8
President-Finance and Chief Financial Officer, the Treasurer, the
Secretary or the Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by two Officers, one of whom
must be the Chairman of the Board, the Co-Chairman of the Board,
the President and Chief Executive Officer, the Vice
President-Finance and Chief Financial Officer or the Treasurer of
the Company.
"Opinion of Counsel" means a written opinion from the
general counsel of the Company or other legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an
employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount
thereof to be due and payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money or Government Obligations
(as provided for in Section 4.6) 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 and any coupons appertaining
thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in
Sections 4.4 and 4.5, with respect to which the Company
has effected defeasance and/or covenant defeasance as
provided in Article 4; and
(iv) Securities which have been replaced or paid
pursuant to Section 3.6 or in exchange for or in lieu of
<PAGE> 9
which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, and for the
purpose of making the calculations required by section 313 of the
Trust Indenture Act, (w) the principal amount of any Original
Issue Discount Securities that may be counted in making such
determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to
be) due and payable, at the time of such determination, upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, (x) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by
the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount
(or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (w) above) of such
Security, (y) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security
pursuant to Section 3.1, and (z) 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 making such calculation or 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
<PAGE> 10
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest and any other
payments due on any Securities on behalf of the Company.
"Payment Default" means a default in the payment of
principal or interest on Senior Indebtedness.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities,
including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if
any, the Maturity thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, company,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the
principal of, premium, if any, interest and any other payments
due on such Securities are payable as specified as contemplated
by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, in whole or in part, means the price at which it
is to be redeemed pursuant to this Indenture.
<PAGE> 11
"Registered Security" means any Security issued hereunder
and registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of or within any series
means the date specified for that purpose as contemplated by
Section 3.1.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive
committee of the board of directors, the president, any 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 officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also shall mean, with respect to a
particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means a
Security or Securities of the Company issued, authenticated and
delivered under this Indenture.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on (including interest that, but for the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law
with respect to the Company, would accrue on such obligations,
whether or not such claim is allowed in such bankruptcy
proceeding) and all other monetary obligations of every kind or
nature due on or in connection with any Debt of the Company
(other than the Securities), whether outstanding on the date of
this Indenture or thereafter created, incurred or assumed,
unless, in the case of any particular Debt, the instrument
creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Debt shall not be senior
in right of payment to the Securities or to other Debt which is
<PAGE> 12
pari passu with, or subordinated to, the Securities. Without
limiting the generality of the foregoing, "Senior Indebtedness"
shall include the Debt under the Credit Agreement, interest and
all other monetary obligations of any kind or nature due under
the Credit Agreement. Notwithstanding the foregoing, Senior
Indebtedness shall not include (i) Debt of the Company to a
Subsidiary for money borrowed or advanced from such Subsidiary or
(ii) amounts owed (except to banks and other financing
institutions) for goods, materials or services purchased in the
ordinary course of business.
"Significant Senior Indebtedness" means Senior Indebtedness
incurred under the Credit Agreement.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means
the date specified in such Security or in a coupon representing
such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" of any Person means any corporation, company,
partnership, joint venture, association, joint-stock company,
trust or other entity of which at least a majority of the
outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other
ownership interests ordinarily constituting a majority voting
interest, is owned or controlled, directly or indirectly, by such
Person or by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as amended and as in effect on the date of this Indenture, except
as provided in Section 8.3.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor Trustee replaces it
pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Trustee and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
<PAGE> 13
"United States" means, unless otherwise specified with
respect to the Securities of any series as contemplated by
Section 3.1, the United States of America (including the States
thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a
citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which
is subject to United States federal income taxation regardless of
its source.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term Section
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.12(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.12(c)
Section 1.2. Compliance Certificates and Opinions. Upon
any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as
may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer or officers of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
<PAGE> 14
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than pursuant to Sections 2.3, 3.3 and 9.6) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or
covenant 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 or she has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has
been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
<PAGE> 15
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 or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate,
statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by (i) one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent or proxy duly appointed in writing, (ii) the record of
Holders of Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of
Holders of Securities duly called and held in accordance with the
provisions of Article 12 or (iii) a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are received by the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at such meeting. The
Company and the Trustee may assume that any Act of a Holder has
not been modified or revoked unless written notice to the
contrary is received prior to the time that the action to which
such Act relates has become effective. 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 conclusive in
favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section
12.6.
<PAGE> 16
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person
executing the same may be proved in any manner which the Trustee
deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed
by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such trust company, bank, banker or
other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another such
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding.
The ownership of Bearer Securities may also be proved in any
other manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved
by the Register.
(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 any coupons
appertaining thereto and the Holder of every Security or coupon
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 Act is made upon such
Security or coupon.
(f) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders of Registered Securities entitled to
give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of Registered Securities of record at
<PAGE> 17
the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
Section 1.5. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Trustee at
its Corporate Trust Office, Attention: __________, 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 it at 600 Madison Avenue, New York, New York
10022, Attention: _________ or at any other address
previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (i) if any
of the Securities affected by such event are Registered
Securities, such notice to the Holders thereof shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each
such Holder affected by such event, at his address as it appears
in the Register, within the time prescribed for the giving of
such notice, and (ii) if any of the Securities affected by such
<PAGE> 18
event are Bearer Securities, notice to the Holders thereof shall
be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published once in
an Authorized Newspaper in New York, New York, and in such other
city or cities, if any, as may be specified as contemplated by
Section 3.1. Such notices shall be deemed to have been given on
the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice,
nor any defect in any notice so mailed or published, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or of
Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice as provided above, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. If it is impossible
or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such
publication in lieu thereof as shall be made with the approval of
the Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
Where this Indenture 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 equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. 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.
<PAGE> 19
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successor and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or 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 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities, expressed 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 1.11. Governing Law. THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. This Indenture is subject to the Trust Indenture Act and
if any provision hereof limits, qualifies or conflicts with the
Trust Indenture Act, the Trust Indenture Act shall control.
Whether or not this Indenture is required to be qualified under
the Trust Indenture Act, the provisions of the Trust Indenture
Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in
this Indenture with the same effect as if such provisions were
set forth herein and any provisions hereof which may not be
included in an indenture which is so qualified shall be deemed to
be deleted or modified to the extent such provisions would be
required to be deleted or modified in an indenture so qualified.
Section 1.12. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of any Security or coupon
other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of
this Section), payment of principal, premium, if any, or interest
need not be made at such Place of Payment on such date, but may
<PAGE> 20
be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on such date;
provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be, if such amount is so paid on the
next succeeding Business Day.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each
series and the coupons, if any, to be attached thereto shall be
in substantially such form as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities and coupons,
if any, as evidenced by their execution of the Securities and
coupons, if any. If temporary Securities of any series are
issued as permitted by Section 3.4, the form thereof also shall
be established as provided in the preceding sentence. If the
forms of Securities and coupons, if any, of any series are
established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto,
including a copy of the approved form of Securities or coupons,
if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, may 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 and coupons, if any, as
evidenced by their execution of such Securities and coupons, if
any.
<PAGE> 21
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
_______________,
as Trustee
By ________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of
or within a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time
to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from
time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as
shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject
to the provisions of Section 3.3 and, if applicable, Section 3.4,
the Trustee shall deliver and redeliver any security in permanent
global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company
Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or
an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written
instructions (which need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion
of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written
statement contemplated by the last paragraph of Section 3.3.
<PAGE> 22
Notwithstanding the provisions of Section 2.1 and 3.7,
unless otherwise specified as contemplated by Section 3.1,
payment of principal of, premium, if any, and interest on any
Registered Security in permanent global form shall be made to the
registered holder thereof.
Section 2.4. Form of Legend for Securities in Global Form.
Any Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form or in
such other form as may be specified in accordance with Section
3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series. (a)
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series.
(b) The following matters shall be established with respect
to each series of Securities issued hereunder (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution
and (subject to Section 3.3) set forth, or determined in the
manner provided, in an Officers' Certificate or (iii) in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series
(which title shall distinguish the Securities of the
series from all other series of Securities);
<PAGE> 23
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be authenticated
and delivered under this Indenture (which limit shall not
pertain to Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 3.4,
3.5, 3.6, 8.6 or 10.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable
or the method of determination thereof;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date or
dates from which such interest shall accrue or the method by
which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable,
the right, if any, of the Company to defer or extend an
Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest
Payment Date, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places where the principal of,
premium, if any, and interest, if any, on Securities of the
series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served
and where notices to Holders pursuant to Section 1.6 will be
published;
(6) the period or periods within which, the price or
prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and
conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company
and, if other than as provided in Section 10.3, the manner
in which the particular Securities of such series (if less
than all Securities of such series are to be redeemed) are
to be selected for redemption;
<PAGE> 24
(7) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or upon the happening of a
specified event or at the option of a Holder thereof and the
period or periods within which, the price or prices at
which, the currency or currencies (including currency unit
or units) in which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, if Registered Securities, and if
other than denominations of $5,000 and any integral multiple
thereof, if Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal
of, premium, if any, and interest, if any, on the Securities
of the series shall be payable, or in which the Securities
of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any,
or interest, if any, on the Securities of the series are to
be made, at the election of the Company or a Holder, in a
currency or currencies (including currency unit or units)
other than that in which such Securities are denominated or
designated to be payable, the currency or currencies
(including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments
and the manner in which the exchange rate with respect to
such payments shall be determined, and the particular
provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of,
premium, if any, and interest, if any, on the Securities of
the series shall be determined with reference to an index,
formula or other method (which index, formula or method may
be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which
the Securities of the series are denominated or designated
to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or
defeasance provisions in connection therewith;
<PAGE> 25
(12) if other than the principal amount thereof, the
portion of the principal amount of such Securities of the
series which shall be payable upon declaration of
acceleration thereof pursuant to Section 5.2 or the method
by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the
Person to whom any interest on any Registered Security of
the series shall be payable and the manner in which, or the
Person to whom, any interest on any Bearer Securities of the
series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default set forth in Section 5.1 or
covenants of the Company set forth in Article 9 pertaining
to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional
amounts on the Securities and coupons, if any, of that
series held by a Person who is not a U.S. Person (including
any modification of the definition of such term) in respect
of taxes, assessments or similar charges withheld or
deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable
as Registered Securities or Bearer Securities (with or
without interest coupons), or both, and any restrictions
applicable to the offering, sale, transfer or delivery of
Bearer Securities and, if other than as provided in Section
3.5, the terms upon which Bearer Securities of a series may
be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security representing
Outstanding Securities of the series shall be dated if other
than the date of original issuance of the first Security of
the series to be issued;
<PAGE> 26
(19) the forms of the Securities and coupons, if any,
of the series;
(20) the applicability, if any, to the Securities and
coupons, if any, of or within the series of Sections 4.4 and
4.5, or such other means of defeasance or covenant
defeasance as may be specified for the Securities and
coupons, if any, of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations referred
to in the definition of such term which are not obligations
of the United States or an agency or instrumentality of the
United States;
(21) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(22) the designation of the initial Exchange Rate
Agent, if any;
(23) if the Securities of the series shall be issued in
whole or in part in global form, (i) the Depositary for such
global Securities, (ii) whether beneficial owners of
interests in any Securities of the series in global form may
exchange such interests for certificated Securities of such
series and of like tenor of any authorized form and
denomination, and (iii) if other than as provided in Section
3.5, the circumstances under which any such exchange may
occur;
(24) the designation of the initial Depositary;
(25) any restrictions on the registration, transfer or
exchange of the Securities;
(26) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange
of a temporary Security of such series or otherwise), or any
installment of principal or interest is payable, only upon
receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such
certificates, documents or conditions;
<PAGE> 27
(27) the relative degree, if any, to which the
Securities of the series shall be senior to or be
subordinated to other series of Securities in right of
payment, whether such other series of Securities are
Outstanding or not; and
(28) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture)
including any terms which may be required by or advisable
under United States laws or regulations or advisable (as
determined by the Company) in connection with the marketing
of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical except as
to denomination and except as may otherwise be provided (i) by a
Board Resolution, (ii) by action taken pursuant to a Board
Resolution and (subject to Section 3.3) set forth, or determined
in the manner provided, in the related Officers' Certificate or
(iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such
series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a
copy of such Board Resolution shall be delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth, or providing the manner for determining, the terms of the
Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee
prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a
series shall be issuable in denominations of $1,000 and any
integral multiple thereof and any Bearer Securities of a series
shall be issuable in the denomination of $5,000 and any integral
multiple thereof.
Section 3.3. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by
two Officers. The Company's seal shall be reproduced on the
Securities. The signatures of any of these officers on the
Securities may be manual or facsimile. The coupons, if any, of
Bearer Securities shall bear the facsimile signature of two
Officers.
<PAGE> 28
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to be Officers prior to
the authentication and delivery of such Securities or were not
Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that, in the case of
Securities of a series offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time
to time in accordance with such other procedures (including,
without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee
as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as
permitted by Sections 2.1 and 3.1, in authenticating such
Securities and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to sections 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 3.1, that such terms have been, or
in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the
<PAGE> 29
provisions of this Indenture, subject in the case of
Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign
Currency or currency unit judgment in respect of such claim)
be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units
or payments outside the United States.
Notwithstanding that such form or terms have been so established,
the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation
with counsel), the issue of such Securities pursuant to this
Indenture will materially adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Notwithstanding the generality of the foregoing, the Trustee will
not be required to authenticate Securities denominated in a
Foreign Currency if the Trustee reasonably believes that it would
be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are
not to be issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise
required pursuant to the two preceding paragraphs in connection
with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future
issuances, are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be
issued.
<PAGE> 30
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and
the legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of
Securities of such series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part
in global form, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more
Securities in global form that (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 Security or Securities in global form, (ii) shall be
registered, if a Registered Security, in the name of the
Depositary for such Security or Securities in global form or the
nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear the legend set forth in Section
2.4.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of
1934 and any other applicable statute or regulation. If
requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and
rights of such Depositary and the Trustee with regard to
Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory
for any purpose until authenticated by the manual signature of
one of the authorized signatories of the Trustee or an
Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such
signature upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of
this Indenture. Except as permitted by Section 3.6 or 3.7, the
Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have
been detached and cancelled.
<PAGE> 31
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 3.9
together with a written statement (which need not comply with
Section 1.2 hereof and need not be accompanied by an Officers'
Certificate or an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the
preparation of definitive Securities of any series, the Company
may execute and, upon Company Order, the Trustee shall
authenticate and deliver temporary Securities of such series
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor and form, with or without coupons, 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 conclusively evidenced by their execution of such
Securities and coupons, if any. In the case of Securities of any
series, such temporary Securities may be in global form,
representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the
provisions thereof, if temporary Securities of any series are
issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After
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 pursuant to Section 9.2 in a Place of Payment for
such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall
<PAGE> 32
authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security unless the Trustee shall have received
from the Person entitled to receive the definitive Bearer
Security a certificate substantially in the form approved in or
pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. 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 except as otherwise
specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency to be maintained by the
Company in accordance with Section 9.2 in a Place of Payment a
register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of
transfers of Registered Securities. The Register shall be in
written form or any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby
initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency
maintained pursuant to Section 9.2 in a Place of Payment for that
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like
aggregate principal amount containing identical terms and
provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any coupons appertaining thereto (except for
coupons attached to any temporary global Bearer Security) shall
be transferable by delivery.
<PAGE> 33
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be
exchanged for other Registered Securities of the same series, of
any authorized denominations, of a like aggregate principal
amount and containing identical terms and provisions, upon
surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered
Securities.
Unless otherwise specified as contemplated by Section 3.1,
at the option of the Holder, Bearer Securities of such series may
be exchanged for Registered Securities (if the Securities of such
series are issuable in registered form) or Bearer Securities (if
Bearer Securities of such series are issuable in more than one
denomination and such exchanges are permitted by such series) of
the same series, of any authorized denominations, of like tenor
and aggregate principal amount and containing identical terms and
conditions, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company and
the Trustee in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 9.2, interest represented
by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case any Bearer
Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series
after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at
such office or agency on the related date for payment of
<PAGE> 34
Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such coupon
is so surrendered with such Bearer Security, such coupon shall be
returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon, when due in accordance
with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the
exchange of Bearer Securities for Registered Securities shall be
subject to applicable laws and regulations in effect at the time
of exchange. Neither the Company, the Trustee nor the Registrar
shall exchange any Bearer Securities for Registered Securities if
it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in
effect and the Company has delivered to the Trustee a Company
Order directing the Trustee not to make such exchanges
thereafter, unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies
of such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in
certificated form, a Security in global form representing all or
a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue
as Depositary for the Securities of such series or if at any time
the Depositary for the Securities of such series shall no longer
be eligible under Section 3.3, the Company shall appoint a
successor Depositary with respect to the Securities of such
<PAGE> 35
series. If a successor Depositary for the Securities of such
series is not appointed by the Company prior to the resignation
of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section
3.1(b)(24) shall no longer be effective with respect to the
Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations
and in an aggregate principal amount equal to the principal
amount of the Security or Securities of such series of like tenor
in global form in exchange for such Security or Securities in
global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be
represented by such a Security or Securities in global form. In
such event the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the
Security or Securities of such series of like tenor in global
form in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series
may surrender a Security in global form of such series in
exchange in whole or in part for Securities of such series in
certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service
charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of
like tenor, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the
Security in global form; and
<PAGE> 36
(ii) to such Depositary a new Security in global form
of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Security in global form and the aggregate principal amount
of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for
Securities in certificated form, such Security in global form
shall be cancelled by the Trustee. Unless expressly provided
with respect to the Securities of any series that such Security
may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global
form pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee
in writing. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
upon any 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 Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Registrar or the Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Registrar and the Trustee 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 for any exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 10.7 not involving any
transfer.
<PAGE> 37
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at
the opening of business 15 days before any selection for
redemption of Securities of like tenor and of the series of which
such Security is a part and ending at the close of business on
the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like
tenor and of such series to be redeemed; (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part; or (iii) to exchange any
Bearer Security so selected for redemption, except that such a
Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with
respect to any series of Securities by a Board Resolution or in
one or more indentures supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated
Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee, together with, in proper cases,
such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was
a Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was a Bearer
Security, of the same series and date of maturity.
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 or Security with a destroyed, lost or
stolen coupon 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 or coupon has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a replacement
Registered Security, if such Holder's claim appertains to a
Registered Security, or a replacement Bearer Security with
coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security
to which such lost, destroyed or stolen coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same
<PAGE> 38
series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding
with coupons corresponding to the coupons, if any, appertaining
to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security or coupon, pay such Security or coupon; provided,
however, that payment of principal of and any premium or interest
on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located
outside the United States and, unless otherwise specified as
contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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, its agents and counsel) connected
therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, 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 and their coupons, if
any, 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 or coupons.
<PAGE> 39
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1,
interest, if any, on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such
interest at the office or agency maintained for such purpose
pursuant to Section 9.2; provided, however, that at the option of
the Company, interest on any series of Registered Securities that
bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of
Holders of Securities of such series or (ii) at the expense of
the Company, by wire transfer to an account maintained by the
Person entitled thereto as specified in the Register of Holders
of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1,
(i) interest, if any, on Bearer Securities shall be paid only
against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and
(ii) original issue discount, if any, on Bearer Securities shall
be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any
such instruction for payment in the United States does not cause
any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The
interest, if any, on any temporary Bearer Security shall be paid,
as to any installment of interest evidenced by a coupon attached
thereto only upon presentation and surrender of such coupon and,
as to other installments of interest, only upon presentation of
such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the
payment of the full amount so payable at the office or offices of
all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such
amount in Dollars, then the Company may instruct the Trustee in
writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the
United States would not cause such Bearer Security to be treated
as a "registration-required obligation" under United States laws
and regulations.
<PAGE> 40
(b) Unless otherwise provided as contemplated by Section
3.1, any interest on Registered Securities of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holders on the relevant
Regular Record Date by virtue of their having been such Holders,
and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such
Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address as it
appears in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
<PAGE> 41
(2) The Company may make payment of such Defaulted
Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in
any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Registered Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant
to this clause (2), such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners. Prior to due
presentment of any Registered 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 Registered
Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not
such Registered 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.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Bearer
Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests of a Security in global form, or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing
herein shall prevent the Company or the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
<PAGE> 42
Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and
owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation.
The Registrar and any Paying Agent shall forward to the Trustee
any Securities and coupons surrendered to them for replacement,
for redemption, for registration of transfer, for exchange or
payment or for credit against any sinking fund payment. The
Trustee shall cancel all Securities and coupons surrendered for
replacement, for redemption, for registration of transfer, or for
exchange, payment, credit against any sinking fund payment or
cancellation and shall destroy cancelled Securities and coupons
and, at the request of the Company, shall issue a certificate of
destruction to the Company. The Company may not issue new
Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the
Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use),
and, in such case, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption 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.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, with respect to Registered
<PAGE> 43
Securities of any series not permitting the election provided for
in paragraph (b) below or the Holders of which have not made the
election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in
paragraph(d) below, payment of the principal of, premium, if any,
and interest, if any, on any Registered or Bearer Security of
such series will be made in the currency or currencies or
currency unit or units in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions
of this Section 3.12 may be modified or superseded pursuant to
Section 3.1 with respect to any Securities.
(b) It may be provided pursuant to Section 3.1, with
respect to Registered Securities of any series, that Holders
shall have the option, subject to paragraphs (d) and (e) below,
to receive payments of principal of, premium, if any, or
interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such
election by delivering to the Trustee (or the applicable Paying
Agent) a written election with signature guarantees and in the
applicable form established pursuant to Section 3.1, not later
than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such
election will remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by
written notice to the Trustee (or any applicable Paying Agent)
for such series of Registered Securities (but any such change
must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective
for the payment to be made on such payment date, and no such
change of election may be made with respect to payments to be
made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which
the Company has deposited funds pursuant to Article 4 or with
respect to which a notice of redemption has been given by or on
behalf of the Company). Any Holder of any such Registered
Security who shall not have delivered any such election to the
Trustee (or any applicable Paying Agent) not later than the close
of business on the applicable Election Date will be paid the
amount due on the applicable payment date in the relevant
currency or currency unit as provided in Section 3.12(a). The
Trustee (or the applicable Paying Agent) shall notify the
Exchange Rate Agent as soon as practicable after the Election
Date of the aggregate principal amount of Registered Securities
for which Holders have made such written election.
<PAGE> 44
(c) If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a
series pursuant to Section 3.1, then, unless otherwise specified
pursuant to Section 3.1 with respect to any such Registered
Securities, not later than the fourth Business Day after the
Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a
written notice specifying, in the currency or currencies or
currency unit or units in which Registered Securities of such
series are payable, the respective aggregate amounts of principal
of, premium, if any, and interest, if any, on such Registered
Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units
so payable in respect of such Registered Securities as to which
the Holders of Registered Securities denominated in any currency
or currencies or currency unit or units shall have elected to be
paid in another currency or currency unit as provided in
paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for with respect to any Registered
Securities of a series pursuant to Section 3.1, and if at least
one Holder has made such election, then, unless otherwise
specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the
Trustee (or the applicable Paying Agent) an Exchange Rate
Officers' Certificate in respect of the Dollar, Foreign Currency
or Currencies, ECU or other currency unit payments to be made on
such payment date. Unless otherwise specified pursuant to
Section 3.1, the Dollar, Foreign Currency or Currencies, ECU or
other currency unit amount receivable by Holders of Registered
Securities who have elected payment in a currency or currency
unit as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate
in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination
shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, ECU or any other currency unit in which any of the
Securities are denominated or payable otherwise than pursuant to
an election provided for pursuant to paragraph (b) above, then,
with respect to each date for the payment of principal of,
<PAGE> 45
premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU
or such other currency unit occurring after the last date on
which such Foreign Currency, ECU or such other currency unit was
used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the
currency of payment shall, at the Company's election, resume
being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.1,
the Dollar amount to be paid by the Company to the Trustee or any
applicable Paying Agent and by the Trustee or any applicable
Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency
other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a Foreign Currency that is a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if
the Holder of a Registered Security denominated in any currency
or currency unit shall have elected to be paid in another
currency or currency unit or in other currencies as provided in
paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such
Holder shall receive payment in the currency or currency unit in
which payment would have been made in the absence of such
election and (ii) if a Conversion Event occurs with respect to
the currency or currency unit in which payment would have been
made in the absence of such election, such Holder shall receive
payment in Dollars as provided in paragraph (d) of this Section
3.12 (but, subject to any contravening valid election pursuant to
paragraph (b) above, the elected payment currency or currency
unit, in the case of the circumstances described in clause (i)
above, or the payment currency or currency unit in the absence of
such election, in the case of the circumstances described in
clause (ii) above, shall, at the Company's election, resume being
the currency or currency unit of payment with respect to Holders
who have so elected, but only with respect to payments on payment
dates preceded by 15 Business Days during which the circumstances
which gave rise to such currency or currency unit, in the case of
the circumstances described in clause (i) above, or the Dollar,
<PAGE> 46
in the case of the circumstances described in clause (ii) above,
as applicable, becoming the currency or currency unit of payment,
no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by the Exchange Rate Agent by
converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the
provisions of paragraph (h) below, shall be the sum of each
amount obtained by converting the Specified Amount of each
Component Currency (as each such term is defined in paragraph (h)
below) into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 3.12 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant
to Section 3.1 by which the written election referred to in
Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof
which such Component Currency represented in the relevant
currency unit, including, but not limited to, ECU, on the
Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after
the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date
any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall
be replaced by specified amounts of such two or more currencies,
the sum of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to the
Specified Amount of such former Component Currency and such
amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not
<PAGE> 47
limited to, ECU, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes
of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the
Dollar Equivalent of the Currency Unit, the Market Exchange Rate
and changes in the Specified Amounts as specified above 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, the Trustee (and any applicable Paying Agent)
and all Holders of Securities denominated or payable in the
relevant currency, currencies or currency units. The Exchange
Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
In the event that the Company determines in good faith that
a Conversion Event has occurred with respect to a Foreign
Currency, the Company will promptly give written notice thereof
to the Trustee (or any applicable Paying Agent) and to the
Exchange Rate Agent (and the Trustee (or such Paying Agent) will
promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In
the event the Company so determines that a Conversion Event has
occurred with respect to ECU or any other currency unit in which
Securities are denominated or payable, the Company will promptly
give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent)) will promptly thereafter give notice in the
manner provided in Section 1.6 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the
<PAGE> 48
Company determines in good faith that any subsequent change in
any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate
Agent and shall have no duty or obligation to determine the
accuracy or validity of such information.
Section 3.13. Appointment and Resignation of Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 3.1,
if and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be
payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of
determining the applicable rate of exchange and, if applicable,
for the purpose of converting the issued currency or currencies
or currency unit or units into the applicable payment currency or
currency unit for the payment of principal, premium, if any, and
interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of
appointment by the successor Exchange Rate Agent as evidenced by
a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of the Exchange Rate Agency for any cause, with respect to
the Securities of one or more series, the Company, by or pursuant
to a Board Resolution, shall promptly appoint a successor
Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any
such successor Exchange Rate Agent may be appointed with respect
to the Securities of one or more or all of such series and that,
unless otherwise specified pursuant to Section 3.1, at any time
<PAGE> 49
there shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated
and/or payable in the same currency or currencies or currency
unit or units).
ARTICLE 4
Satisfaction, Discharge and Defeasance
Section 4.1. Termination of Company's Obligations Under
the Indenture. (a) This Indenture shall upon a Company Request
cease to be of further effect with respect to Securities of or
within any series and any coupons appertaining thereto (except as
to (i) rights of registration, transfer or exchange of such
Securities, (ii) rights of replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly
provided for, (iii) rights of holders of Securities to receive
payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration),
and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights, obligations, duties and immunities
of the Trustee hereunder, (v) any rights of the Holders of
Securities of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any
of them, and (vi) the obligations of the Company under Section
9.2) and the Trustee, upon payment of all amounts due it under
Section 6.9, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any coupons
appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than
(i) such coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.5, (ii)
such Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) such coupons appertaining to Bearer
Securities called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities and
<PAGE> 50
coupons 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 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient
to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any,
and interest, with respect thereto, 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 as to such series have been complied with.
<PAGE> 51
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons appertaining thereto, if any, 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, premium, if any and any interest for
whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. If
pursuant to Section 3.1 provision is made for either or both of
(i) defeasance of the Securities of or within a series under
Section 4.4 or (ii) covenant defeasance of the Securities of or
within a series under Section 4.5, then the provisions of such
Section or Sections, as the case may be, together with the
provisions of Sections 4.6 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1
with respect to any Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company
may at its option by or pursuant to Board Resolution, at any
time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 4.4 (if applicable)
or Section 4.5 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
Section 4.4. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to
this Section with respect to the Securities of or within a
series, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities and any coupons
<PAGE> 52
appertaining thereto on and after the date the conditions set
forth in Section 4.6 are satisfied (hereinafter "defeasance").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by such Securities and any coupons appertaining
thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.7 and the other Sections of this
Indenture referred to in clause (ii) of this Section, and to have
satisfied all its other obligations under such Securities and any
coupons appertaining thereto and this Indenture insofar as such
Securities and any coupons appertaining thereto are concerned
(and the Trustee, upon payment of all amounts due it under
Section 6.9, at the expense of the Company, shall on a Company
Order execute proper instruments acknowledging the same), except
the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such
Securities and any coupons appertaining thereto to receive,
solely from the trust funds described in Section 4.6(a) and as
more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest, if any, on such
Securities or any coupons appertaining thereto when such payments
are due; (ii) the Company's obligations with respect to such
Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with respect
to the payment of additional amounts, if any, payable with
respect to such Securities as specified pursuant to Section
3.1(b)(16); (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article 4.
Subject to compliance with this Article 4, the Company may
exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such
Securities and any coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's
exercise of the option specified in Section 4.3 applicable to
this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 7.1 and 9.4 and, if specified pursuant to Section 3.1,
its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the
date the conditions set forth in Section 4.6 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any
<PAGE> 53
coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand,
authorization, direction, notice, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in
connection with Sections 7.1 and 9.4 or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means
that, with respect to such Securities and any coupons
appertaining thereto, the Company may omit to comply with and
shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of
Default under Section 5.1(3) or 5.1(6) or otherwise, as the case
may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 4.4 or Section 4.5 to any Securities of or within a
series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee
satisfying the requirements of Section 6.12 who shall agree
to comply with, and shall be entitled to the benefits of,
the provisions of Sections 4.3 through 4.9 inclusive and the
last paragraph of Section 9.3 applicable to the Trustee, for
purposes of such Sections also a "Trustee") as trust funds
in trust for the purpose of making the payments referred to
in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, with written instructions to the
trustee as to the application thereof, (A) money in an
amount (in such currency, currencies or currency unit or
units in which such Securities and any coupons appertaining
thereto are then specified as payable at Maturity), or (B)
<PAGE> 54
if Securities of such series are not subject to repayment at
the option of Holders, Government Obligations 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 referred to in clause
(x) or (y) of this Section 4.6(a), money in an amount or (C)
a combination thereof in an amount, sufficient, in the
opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay
and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities and any coupons
appertaining thereto on the Maturity of such principal or
installment of principal or interest and (y) any mandatory
sinking fund payments applicable to such Securities on the
day on which such payments are due and payable in accordance
with the terms of this Indenture and such Securities and any
coupons appertaining thereto. Before such a deposit the
Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date or dates
in accordance with Article 10 which shall be given effect in
applying the foregoing.
(b) No Default or Event of Default with respect to the
Securities of that series shall have occurred or be
continuing on the date of such a deposit or shall occur as a
result of such a deposit or, insofar as Sections 5.1(4) and
(5) are concerned, shall occur at any time during the period
ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, any other material agreement or instrument to which
the Company is a party or by which it is bound.
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change
in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any coupons
appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the
same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and
discharge had not occurred.
<PAGE< 55
(e) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Company's exercise
of its option under Section 4.4 or 4.5, as the case may be,
will not result in any of the Company, the Trustee or the
trust created by the Company's deposit hereunder becoming or
being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under Section 4.4 or the covenant defeasance under Section
4.5 (as the case may be) have been complied with.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith as contemplated by Section
3.1.
(h) At the time of such deposit: (A) no Default in
the payment of principal of (or premium, if any) or interest
on any Senior Indebtedness shall have occurred and be
continuing or (B) no other Event of Default with respect to
any Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become
due and payable, or, in the case of either clause (A) or
clause (B) above, each such Default or Event of Default
shall have been cured or waived or shall have ceased to
exist.
Section 4.7. Deposited Money and Government Obligations to
Be Held in Trust. Subject to the provisions of the last
paragraph of Section 9.3, all money and Government Obligations
(or other property as may be provided pursuant to Section 3.1)
(including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any
series and any coupons appertaining thereto shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining
thereto 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 and any coupons appertaining thereto of all sums
due and to become due thereon in respect of 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.
<PAGE> 56
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in
Section 4.6(a) has been made, (i) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 3.12(b) or the terms of such Security
to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 4.6(a) has been made in
respect of such Security, or (ii) a Conversion Event occurs as
contemplated in Section 3.12(d) or 3.12(e) or by the terms of any
Security in respect of which the deposit pursuant to Section
4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through
the payment of the principal of, premium, if any, and interest,
if any, on such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency
or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the
applicable Market Exchange Rate for such currency or currency
unit in effect on the second Business Day prior to each payment
date, or, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of
the Conversion Event.
Section 4.8. Repayment to Company. The Trustee (and any
Paying Agent) shall promptly pay to the Company upon Company
Request any excess money or securities held by them at any time.
Section 4.9. Indemnity for Government Obligations. The
Company shall pay, and shall indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against
Government Obligations deposited pursuant to this Article or the
principal and interest and any other amount received on such
Government Obligations.
<PAGE> 57
ARTICLE 5
Defaults and Remedies
Section 5.1. Events of Default. An "Event of Default"
occurs with respect to the Securities of any series if (whatever
the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) the Company defaults in the payment of interest on
any Security of that series or any coupon appertaining
thereto or any additional amount payable with respect to any
Security of that series as specified pursuant to Section
3.1(b)(16) when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of any
installment of the principal of or any premium on any
Security of that series when the same becomes due and
payable, whether at its Maturity or on redemption or
otherwise, or in the payment of a mandatory sinking fund
payment when and as due by the terms of the Securities of
that series;
(3) the Company fails to comply in any material
respect with any of its agreements or covenants in, or any
of the provisions of, this Indenture with respect to any
Security of that series (other than an agreement, covenant
or provision for which non-compliance is elsewhere in this
Section specifically dealt with), and such non-compliance
continues for a period of 90 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 aggregate principal amount of the
Outstanding Securities of the 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;
(4) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in
an involuntary case, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit
of its creditors;
<PAGE> 58
(5) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (A) is for relief
against the Company in an involuntary case, (B) appoints a
Custodian of the Company or for all or substantially all of
its property, or (C) orders the liquidation of the Company
and the order or decree remains unstayed and in effect for
60 days; or
(6) there occurs any other Event of Default provided
as contemplated by Section 3.1 with respect to Securities of
that series.
The term "Bankruptcy Law" means any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect.
The term "Custodian" means any receiver, trustee, assignee,
liquidator, custodian, sequestrator or similar official under any
Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If
an Event of Default with respect to the Securities of any series
at the time Outstanding occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of all
of the Outstanding Securities of that series, by written notice
to the Company (and, if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest, if any, on all the
Securities of that series to be due and payable and upon any such
declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable,
provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in
Article 13.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgement 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 aggregate principal amount of the
Outstanding Securities of that series, by written notice to the
Trustee, may rescind and annul such declaration and its
consequences if all existing Defaults and Events of Default with
respect to Securities of that series, other than the non-payment
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 5.7. No such rescission shall
affect any subsequent default or impair any right consequent
thereon.
<PAGE> 59
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on
any Security or coupon, if any, when such interest becomes
due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or coupons, if any, the
whole amount then due and payable on such Securities for
principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue
interest, at the rate or rates prescribed therefor in such
Securities or coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, including all amounts due the Trustee,
its agents and counsel under Section 6.9.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. In case of
any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized
under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized 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
<PAGE> 60
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 6.9.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder of a Security or
coupon thereof or to authorize the Trustee to vote in respect of
the claim of any Holder of a Security or coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
Section 5.5. Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon an Event of Default
shall impair any such right or remedy or constitute a waiver of
or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not
less than a majority in aggregate principal amount of Outstanding
Securities of any series by written notice to the Trustee may
waive on behalf of the Holders of all Securities of such series
and any coupons appertaining thereto a past Default or Event of
Default with respect to that series and its consequences except
<PAGE> 61
(i) a Default or Event of Default in the payment of the principal
of, premium, if any, or interest on any Security of such series
or any coupon appertaining thereto or (ii) in respect of a
covenant or provision hereof which pursuant to Section 8.2 cannot
be amended or modified without the consent of the Holder of each
Outstanding Security of such series adversely affected. Upon any
such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
Section 5.8. Control by Majority. The Holders of not less
than a majority in aggregate principal amount of the Outstanding
Securities of each series affected (with each such series voting
as a class) 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 it with
respect to Securities of that series; provided, however, that (i)
the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, (ii) the Trustee may refuse to follow
any direction that is unduly prejudicial to the rights of the
Holders of Securities of such series not consenting, or that
would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor
and (iii) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of
any Security of any series or any coupons appertaining thereto
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) the Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have
made a 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
indemnity satisfactory to the Trustee against any loss,
liability or expense to be, or which may be, incurred by the
Trustee in pursuing the remedy;
<PAGE> 62
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to
institute any such proceedings; and
(5) during such 60-day period, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of that series have not given to the Trustee a
direction inconsistent with such written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but
subject to Section 9.2, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if any, and,
subject to Sections 3.5 and 3.7, interest on the Security, on or
after the respective due dates expressed in the Security (or, in
case of redemption, on the redemption dates), the right of any
Holder of a coupon to receive payment of interest due as provided
in such coupon, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 5.11. Application of Money Collected. If the
Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on
account of principal, premium, if any, or interest, upon
presentation of the Securities and coupons, if any, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
<PAGE> 63
First: to the Trustee for amounts due under Sec-
tion 6.9;
Second: to Holders of Securities and coupons in
respect of which or for the benefit of which such money
has been collected for amounts due and unpaid on such
Securities for principal of, premium, if any, and
interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and
interest, respectively; and
Third: to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured
coupons relating thereto shall be entitled to receive a ratable
portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is
denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of Maturity of the Securities.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15
days before such record date, the Trustee shall mail to each
Holder and the Company a notice that states the record date, the
payment date and the amount to be paid.
Section 5.12. 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 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or the Holders is intended to be
<PAGE> 64
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 5.14. Undertaking for Costs. 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, a court may require any party litigant
in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act;
provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Company.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities of the
Trustee. (a) Except during the continuance of an Event of
Default, the Trustee's duties and responsibilities under this
Indenture shall be governed by Section 315(a) of the Trust
Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture, and shall use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
Section 6.2. Rights of Trustee. Subject to the provisions
of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any document believed
by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee need not
investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Security,
<PAGE> 65
together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section
3.3, which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting,
it may consult with counsel or require an Officers'
Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in
good faith in reliance on a Board Resolution, the advice of
counsel acceptable to the Trustee, a certificate of an
Officer or Officers delivered pursuant to Section 1.2, an
Officers' Certificate or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys
and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care.
(e) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably
believes to be authorized or within its rights or powers.
(f) The Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such
funds or indemnity deemed satisfactory by the Trustee
against such risk or liability is not reasonably assured to
it.
Section 6.3. Trustee May Hold Securities. The Trustee,
any Paying Agent, any Registrar or any other agent of the Company
or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and,
subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company, an Affiliate or Subsidiary
with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 6.4. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other
<PAGE> 66
funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it
hereunder except as otherwise agreed upon in writing with the
Company.
Section 6.5. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the
proceeds from the Securities or for monies paid over to the
Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs and
is continuing with respect to the Securities of any series and if
it is known to the Trustee, the Trustee shall, within 90 days
after the Default occurs, transmit by mail, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all Defaults known to it unless such Default shall have
been cured or waived; provided, however, that, except in the case
of a Default in the payment of principal (and premium, if any) or
interest on the Securities of any series, the Trustee may
withhold the notice if and so long as a Responsible Officer in
good faith determines that withholding such notice is in the
interests of Holders of Securities of that series.
Section 6.7. Reports by Trustee to Holders. Within 60
days after each May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the Trust Indenture
Act a brief report dated as of such May 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act.
Section 6.8. Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of
Securities of each series. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee semiannually on or
before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list,
in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession or
control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders
of Securities of each such series. If there are Bearer
Securities of any series Outstanding, even if the Trustee is the
Registrar, the Company shall furnish to the Trustee such a list
containing such information with respect to Holders of such
<PAGE> 67
Bearer Securities only. 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 any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 6.9. Compensation and Indemnity. (a) The Company
shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it
in connection with the performance of its duties under this
Indenture, except any such expense as may be attributable to its
negligence or bad faith. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee for, and hold
it harmless against, any loss or liability, damage, claim or
reasonable expense including taxes (other than taxes based upon
or determined or measured by the income of the Trustee) incurred
by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld or delayed.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to
the Securities of any series on all money or property held or
collected by the Trustee, except that held in trust to pay
principal, premium, if any, and interest on particular
Securities.
<PAGE> 68
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(4)
or Section 5.1(5), the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation
or removal of the Trustee and the termination of this Indenture.
Section 6.10. Replacement of Trustee. (a) The resignation
or removal of the Trustee and the appointment of a successor
Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of any 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 Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series may
remove the Trustee with respect to that series by so
notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the Company's
consent.
(d) If at any time:
(1) the Trustee fails to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.12 hereunder or Section 310(a) of the Trust
Indenture Act and shall fail to resign after written
<PAGE> 69
request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security
for at least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver or
public officer takes charge of the Trustee or its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Securities,
or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
Securities of one or more series, the Company, by or pursuant to
Board Resolution, shall promptly appoint a successor Trustee 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 or removal, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders 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.
<PAGE> 70
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 shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee, without
further act, deed or conveyance, shall become vested with all the
rights, powers and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all amounts due it under Section
6.9, 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 such successor
Trustee shall execute and deliver an indenture supplemental
hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, such 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, (ii) 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 (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
<PAGE> 71
Trustee and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall, upon payment
of all amounts due it under Section 6.9, duly assign, transfer
and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under the Trust Indenture Act.
(e) 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 in the manner provided for
notices to the Holders of Securities in Section 1.6. 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. If the Company fails to give such notice within
thirty days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be
given at the expense of the Company.
Section 6.12. Eligibility; Disqualification. (a) 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, shall be a bank or trust company or corporation organized
and doing business and in good standing under the laws of the
United States or of any State thereof or the District of Columbia
and shall have a combined capital and surplus of at least
$75,000,000. If such company or corporation publishes reports of
<PAGE> 72
condition at least annually, pursuant to law or the requirements
of Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such company or
corporation 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 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 specified in
this Article.
(b) If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture and the
Company shall take prompt action to have a successor Trustee
appointed in the manner provided herein. Nothing herein shall
prevent the Trustee from filing with the Commission the
application referred to in the second to the last paragraph of
Section 310(b) of the Trust Indenture Act or any equivalent
successor provision.
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. 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 original issue, exchange,
registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes
<PAGE> 73
as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as may otherwise be provided pursuant to Section 3.1,
shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws
of the United States or of 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 authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the
Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
<PAGE> 74
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner set forth in Section
1.6, at the expense of the Company, to all Holders of Securities
of the series with respect to which such Authenticating Agent
will serve. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent herein.
No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of
its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
_____________________________,
as Trustee
By _____________________ ,as
Authenticating Agent
By _______________________
Authorized Signatory
ARTICLE 7
Consolidation, Merger or Sale by the Company
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate or merge with or
into, or transfer or lease all or substantially all of its assets
to, any Person unless:
<PAGE> 75
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such transfer or lease shall have been made, is an
entity organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such transfer or lease shall have been made, assumes
by supplemental indenture all the obligations of the Company
under the Securities and this Indenture; and
(3) immediately after giving effect to the transaction
no Default or Event of Default exists.
The Company shall deliver to the Trustee prior to the
proposed transaction an Officers' Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor Person as
provided in clause (2) above, such successor Person shall succeed
to and be substituted for, and may exercise every right and power
of, the Company hereunder and under the Securities and any
coupons appertaining thereto with the same effect as if it had
been named hereunder and thereunder and all such obligations of
the Company shall terminate.
ARTICLE 8
Supplemental Indentures
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
<PAGE> 76
covenants and obligations of the Company herein and in the
Securities and any coupons appertaining thereto; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate
the issuance or administration of Bearer Securities
(including, without limitation, to provide that Bearer
Securities may be registrable as to principal only) or to
facilitate the issuance or administration of Securities in
global form; or
(5) to change or eliminate any of the provisions of
this Indenture in respect of one or more series of
Securities, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws
and regulations, to permit payment in the United States
(including any of the States thereof and the District of
<PAGE> 77
Columbia), its territories, its possessions and other areas
subject to its jurisdiction of principal, premium, if any,
or interest, if any, on Bearer Securities or coupons, if
any; or
(10) 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, provided such action
shall not adversely affect in any material respect the
interests of the Holders of Securities of any series; or
(11) to cure any ambiguity or correct any mistake; or
(12) to modify the provisions in Article 13 of this
Indenture with respect to the subordination of Outstanding
Securities of any series in a manner not adverse to the
Holders thereof.
Section 8.2. Supplemental Indentures With Consent of
Holders. With the written consent of the Holders of not less
than a majority of the aggregate principal amount of the
Outstanding Securities adversely affected by such supplemental
indenture (with the Securities of each series voting as a class),
the Company and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any
other indenture supplemental hereto or to modify the rights of
the Holders of such Securities; provided, however, that without
the consent of the Holder of each Outstanding Security affected
thereby, an amendment under this Section may not:
(1) change the Stated Maturity of the principal of or
premium, if any, on, or any installment of principal of or
premium, if any, or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change
the manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined or reduce
the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the currency or currency
unit in which any Securities or any premium or the interest
<PAGE> 78
thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, 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;
(3) change any obligation of the Company to maintain
an office or agency in the places and for the purposes
specified in Section 9.2;
(4) make any change in this Section 8.2 except to
increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security
affected thereby; or
(5) modify the provisions in Article 13 of this
Indenture with respect to the subordination of Outstanding
Securities of any series in a manner adverse to the Holders
thereof.
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 is not necessary under this Section 8.2 for the Holders
to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance
thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more
series shall be set forth in a supplemental indenture that
complies with the Trust Indenture Act as then in effect.
<PAGE> 79
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or
otherwise.
Section 8.5. 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 and of any
coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, 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
including any coupons of any series so modified as to conform, in
the opinion of 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
including any coupons of such series.
ARTICLE 9
Covenants
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of
the Holders of each series of Securities that it will duly and
punctually pay the principal of, premium, if any, and interest
together with additional amounts, if any, on the Securities of
that series in accordance with the terms of the Securities of
such series, any coupons appertaining thereto and this Indenture;
provided, however, that amounts properly withheld under the
Internal Revenue Code of 1986, as amended, by any Person from a
payment to any Holder of Securities, after having requested such
Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be
considered as having been paid by the Company to such Holder for
purposes of this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date
<PAGE> 80
it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. If
Securities of a series are issued as Registered Securities, the
Company will maintain in each Place of Payment 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 and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, (i) subject to any laws or
regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United
States where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland
Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in London, Luxembourg or
any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed
on such exchange, and (ii) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States, where
Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
<PAGE> 81
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1,
no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the
United States, by check mailed to any address in the United
States, by transfer to an account located in the United States or
upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be
credited to an account located outside the United States;
provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and
any premium or interest on any such Bearer Security shall be made
at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any
coupons, if any) of one or more series may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any coupons, if any) of any
series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1,
the Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as
its own Paying Agent with respect to any series of Securities and
any coupons appertaining thereto, it will, on or before each due
date of the principal of, 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
<PAGE> 82
pay the principal, 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 in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and any coupons appertaining
thereto, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay such amount, such sum
to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, 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, premium,
if any, or interest on the Securities; 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 terms
set forth in this Indenture; 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 any
principal, premium or interest on any Security of any series and
remaining unclaimed for two years after such principal, 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 and coupon, if any, 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 in the name and 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 City of New York, or cause to
be mailed to such Holder, 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 9.4. Corporate Existence. Subject to Article 7,
the Company will at all times do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence and its rights and franchises; provided that
nothing in this Section 9.4 shall prevent the abandonment or
termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is
desirable in the conduct of the business of the Company and not
prejudicial in any material respect to the Holders of the
Securities.
Section 9.5. Reports by the Company. The Company
covenants:
(a) to file with the Trustee, within 30 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; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to 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
<PAGE> 84
required pursuant to section 13 of the Securities Exchange
Act of 1934, as amended, 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;
(b) to file with the Trustee and the Commission, in
accordance with the 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 provided for in
this Indenture, as may be required from time to time by such
rules and regulations; and
(c) to transmit to all Holders of Securities, within
30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in section 313(c) of the
Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 9.5, as
may be required by rules and regulations prescribed from
time to time by the Commission.
Section 9.6. Annual Review Certificate. The Company
covenants and agrees to deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a certificate
from the principal executive officer, principal financial officer
or principal accounting officer of the Company stating that a
review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her
supervision and to the best of his or her knowledge, based on
such review, the Company has fulfilled all of its obligations
under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying
each such default known to him or her and the nature and status
thereof. For purposes of this Section 9.6, such compliance shall
be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 9.7. Books of Record and Account. The Company
will keep proper books of record and account, either on a
consolidated or individual basis. The Company shall cause its
books of record and account to be examined, either on a
<PAGE> 85
consolidated or individual basis, by one or more firms of
independent public accountants not less frequently than annually.
The Company shall prepare its financial statements in accordance
with generally accepted accounting principles.
ARTICLE 10
Redemption
Section 10.1. Applicability of Article. Securities
(including coupons, if any) of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including
coupons, if any, shall be evidenced by or pursuant to a Board
Resolution. In the case of any redemption at the election of the
Company of less than all the Securities or coupons, if any, of
any series, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction
or condition.
Section 10.3. Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if
less than all the Securities (including coupons, if any) of a
series with the same terms are to be redeemed, the Trustee, not
more than 45 days prior to the Redemption Date, shall select the
Securities of the series to be redeemed in such manner as the
Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities of the series that are Outstanding
and that have not previously been called for redemption and may
provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof)
of the principal amount of Securities, including coupons, if any,
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
<PAGE> 86
Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the
Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
(including coupons, if any) shall relate, in the case of any
Securities (including coupons, if any) redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption
shall be given in the manner provided in Section 1.6 not less
than 30 days nor more than 60 days prior to the Redemption Date
to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of
such Security, the holder will receive, without a charge, a
new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment for the
Redemption Price;
(6) that Securities of the series called for
redemption and all unmatured coupons, if any, appertaining
thereto must be surrendered to the Paying Agent to collect
the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date;
(8) that the redemption is from a sinking fund, if
such is the case;
(9) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is
furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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 10.5. Deposit of Redemption Price. On or prior to
any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, which it may not do in the case of a sinking fund
payment under Article 11, segregate and hold in trust as provided
in Section 9.3) an amount of money in the currency or currencies
(including currency unit or units) in which the Securities of
such series are payable (except as otherwise specified pursuant
to Section 3.1 for the Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (unless
the Redemption Date shall be an Interest Payment Date) interest
<PAGE> 88
accrued to the Redemption Date on, all Securities or portions
thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting
Securities (including Securities redeemed otherwise than through
a sinking fund), the Company may deliver such Securities to the
Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.
Section 10.6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any
such interest appertaining to any Bearer Security so to be
redeemed, except to the extent provided below, shall be void.
Except as provided in the next succeeding paragraph, upon
surrender of any such Security, including coupons, if any, 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 on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States and
its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of coupons for such
interest; and provided, further, that, unless otherwise specified
as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest
Payment Dates that are on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Dates according to their
terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon
<PAGE> 89
or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located
outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender
of those coupons.
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 10.7. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part at any Place of Payment
therefor (with, if the Company or the Trustee so required, 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), the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge, a
new Security or Securities of the same series, having the same
form, terms and Stated Maturity, in any authorized denomination
equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE 11
Sinking Funds
Section 11.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of Securities of
any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking
<PAGE> 90
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 11.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities
of a series (other than any previously called for redemption)
together, in the case of Bearer Securities of such series, with
all unmatured coupons appertaining thereto and (ii) may apply as
a credit Securities of a series which have been (x) 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 or
(y) previously delivered to the Trustee and cancelled without
reissuance pursuant to Section 3.9, 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 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 11.2 and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30
days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 10.3 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section
<PAGE> 91
10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 10.6 and 10.7.
ARTICLE 12
Meetings of Holders of Securities
Section 12.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 12.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 12.1, to be
held at such time and at such place in The City of New York or in
such other place as may be acceptable to the Company. Notice of
every meeting of Holders of Securities, setting forth the time
and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.6, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 33 % in principal amount
of the Outstanding Securities of any series shall have requested
the Trustee to call a meeting of the Holders of Securities of
such series for any purpose specified in Section 12.1, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount
specified, as the case may be, may determine the time and the
place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
Section 12.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an
<PAGE> 92
instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 12.4. Quorum; Action. The Persons entitled to vote
a majority in principal amount of the Outstanding Securities of
the applicable series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any such
adjourned meeting shall be given as provided in Section 12.2(a),
except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to
be reconvened.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote
25% in principal amount of the Outstanding Securities of the
applicable series at the time shall constitute a quorum for the
taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of a meeting adjourned for
lack of a quorum shall state expressly the percentage of the
principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all
matters (except as limited by the proviso to Section 8.2) shall
be effectively passed and decided if passed or decided by the
Persons entitled to vote not less than the lesser of (i) a
majority in principal amount of Outstanding Securities of the
applicable series and (ii) 66% in principal amount of Outstanding
<PAGE> 93
Securities of such series represented and voting at such meeting;
provided, however, that any resolution with respect to any
request, demand, authorization, direction, notice, consent,
election, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the
lesser of (i) the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series and
(ii) a majority in principal amount of Outstanding Securities of
such series represented and voting at such meeting or adjourned
meeting.
Any resolution passed or decisions taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
such series and coupons, whether or not present or represented at
the meeting.
In the event that any meeting shall be adjourned for lack of
a quorum or that, at any meeting at which a quorum is present,
any proposed resolution or decision shall not be passed or taken
because the Holders of the percentage of Outstanding Securities
of any series needed to approve such resolution or decision did
not vote in favor of such resolution or decision, the principal
amount of Outstanding Securities of such series represented at
such meeting and voting in favor of such resolution or decision
may be counted for purposes of calculating whether the consent of
the Holders of the percentage of Outstanding Securities of such
series needed in order to make, give or take any request, demand,
authorization, direction, notice, consent, election, waiver or
other action has been obtained, and such vote shall constitute
the consent thereto of such Holders.
Section 12.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other
provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of any series in regard to proof of the
holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
<PAGE> 94
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities of a series shall be
proved in the manner specified in Section 1.4 and the appointment
of any proxy shall be provided in the manner specified in Section
1.4 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.4 to certify to the holding of Bearer
Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman (which may be a Responsible Officer of the
Trustee) of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities of a series as
provided in Section 12.2, in which case the Company or the
Holders of Securities of such series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security or proxy shall
be entitled to one vote for each U.S. $5,000 principal amount of
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 12.2(b) at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
Section 12.6. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives
by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The
permanent chairman of the meeting shall appoint an inspector of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
<PAGE> 95
secretary of the meeting its verified written report of all votes
cast at the meeting. A record of the proceedings of each meeting
of Holders of Securities shall be prepared by the applicable
secretary of the meeting and there shall be attached to said
record the original report of the inspector of votes on any vote
by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was given as provided
in Section 12.2 and, if applicable, Section 12.4. At least two
copies of such record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE 13
Subordination
Section 13.1. Agreement to Subordinate. The Company
covenants and agrees, and each Holder of a Security by accepting
a Security covenants and agrees, that the indebtedness evidenced
by the Securities is subordinated in right of payment, to the
extent and in the manner provided in this Article, to the prior
payment in full of all Senior Indebtedness, and that these
subordination provisions are for the benefit of the holders of
Senior Indebtedness.
Each Holder of a Security authorizes and directs the Trustee
on its behalf to take such action as may be necessary or
appropriate, in the sole discretion of the Trustee, to
acknowledge or effectuate the subordination between the Holders
of Securities and the holders of the Senior Indebtedness as
provided in this Article 13 and appoints the Trustee its
attorney-in-fact for any and all such purposes.
This Article 13 shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of,
or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of holders of Senior Indebtedness, and such
holders are made obligees hereunder and they and/or each of them
may enforce such provisions.
<PAGE> 96
Section 13.2. Liquidation; Dissolution; Bankruptcy. Upon
any distribution or payment to creditors of the Company in a
voluntary or involuntary liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its
property:
(1) holders of Senior Indebtedness shall be entitled
to receive payment in full in cash or cash equivalents of
the principal of and interest (including interest as
provided for in the agreement governing such Senior
Indebtedness which accrues after the commencement of any
such proceeding, whether or not allowed as a claim in any
such proceeding), and other amounts payable on the Senior
Indebtedness before Holders of Securities of any series
shall be entitled to receive any payment of principal of or
interest or other amounts on or in respect of the Securities
of such series; and
(2) until the Senior Indebtedness is paid in full in
cash or cash equivalents any payment or distribution to
which Holders of Securities would be entitled but for this
Article shall be made to holders of Senior Indebtedness, as
their interests may appear; provided, however, that, in the
event that any payment of principal of or interest on the
Securities is ordered or decreed by a court of competent
jurisdiction in a reorganization proceeding under any
applicable law, which order or decree gives effect to the
provisions herein set forth for the subordination of the
Securities to Senior Indebtedness, the Trustee shall be
authorized to make such payment of principal of or interest
on the Securities, in accordance with the terms and
conditions of the order or decree.
Upon any distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of Securities shall
be entitled to rely upon any order or decree of a court of
competent jurisdiction in which such proceedings are pending for
the purpose of ascertaining the identity of Persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness, the amount thereof or payable thereon and all other
facts pertinent thereto or to this Article, and the Trustee and
the Holders of Securities shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders of
Securities for the purpose of ascertaining the identity of
Persons entitled to participate in such distribution, the holders
of the Senior Indebtedness, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article; provided,
however, that the foregoing shall apply only if such court,
trustee, liquidating trustee or other Person has been fully
apprised of the provisions of this Article 13. 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
<PAGE> 97
Senior Indebtedness, to participate in any payment or
distribution pursuant to this Section 13.2, the Trustee may
request such Person (at the expense of the Holders of Securities)
to furnish evidence to the reasonable satisfaction of the
Trustee, acting in good faith, as to the amount of such Senior
Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive payment.
For purposes of this Article 13, a distribution may consist
of cash, securities or other property, by setoff or otherwise,
provided that, for purposes of this Article 13 only, the words
"cash, property or securities" shall not be deemed to include
securities of the Company or any other entity provided for by a
plan of reorganization or readjustment the payment of which is
subordinated at least to the extent provided in this Article with
respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided,
however, that (i) all Senior Indebtedness is assumed by the new
entity, if any, resulting from any such reorganization or
adjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders,
altered 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 its
properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article 7 shall
not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the
<PAGE> 98
purposes of this Section if the entity formed by such
consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer such properties and
assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 7.
Section 13.3. Default on Senior Indebtedness. (a) Upon
the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and interest
thereon and other amounts due in connection therewith shall first
be paid in full in cash or cash equivalents or such payment duly
provided for in cash or cash equivalents before any payment is
made by the Company or any Person acting on behalf of the
Company: (i) on account of the principal of or interest on the
Securities; or (ii) to acquire any of the Securities for cash or
property; or (iii) on account of the redemption provisions of the
Securities.
(b) No direct or indirect payment in respect of the
Securities (including, without limitation, any payment of the
type referred to in clause (i), (ii) or (iii) of Section 13.3(a))
shall be made if, at the time of such payment, there exists a
default in payment of all or any portion of any Senior
Indebtedness, and such default shall not have been cured or
waived in writing or the benefits of this sentence waived in
writing by or on behalf of the holders of such Senior
Indebtedness. In addition, during the continuance of any event
of default (other than a default referred to in the immediately
preceding sentence) with respect to any Significant Senior
Indebtedness, as such event of default is defined therein or in
the instrument under which it is outstanding, permitting the
holders to accelerate the maturity thereof and upon written
notice thereof given to the Trustee, with a copy to the Company
(the delivery of which shall not affect the validity of the
notice to the Trustee), by any holder of Significant Senior
Indebtedness or its Representative then, unless and until such
event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with
respect to the principal of or interest on the Securities or to
acquire any of the Securities or on account of the redemption
provisions of the Securities; provided, however, that if the
holders of the Significant Senior Indebtedness to which the
default relates have not declared such Significant Senior
Indebtedness to be immediately due and payable within 180 days
after the occurrence of such default (or have declared such
Significant Senior Indebtedness to be immediately due and payable
<PAGE> 99
and within such period have rescinded such declaration of
acceleration), then the Company shall resume making any and all
required payments in respect of the Securities (including any
missed payments).
Notwithstanding any other provisions of this Article 13 or
any other provision of this Indenture, only one payment blockage
period under the second sentence of this Section 13.3(b) may be
commenced within any consecutive 365-day period with respect to
the Securities. For all purposes of this Article 13, no event of
default (other than an event of default that was not known to any
Agent (as defined in the Credit Agreement) on the date of the
commencement of the first payment blockage period referred to
below) which existed or was continuing on the date of the
commencement of any 180-day payment blockage period with respect
to the Significant Senior Indebtedness initiating such payment
blockage period shall be, or be made, the basis for the
commencement of a second payment blockage period by the
Representative of Significant Senior Indebtedness whether or not
within a period of 365 consecutive days unless such event of
default shall have been cured or waived for a period of not less
than 90 consecutive days (and, in the case of any such waiver, no
payment shall be made by the Company to the holders of
Significant Senior Indebtedness in connection with such waiver
other than amounts due pursuant to the terms of the Significant
Senior Indebtedness as in effect at the time of such default).
(c) In the event that notwithstanding the provisions of
this Section 13.3, the Company shall make any payment to the
Trustee on account of the principal of or interest on the
Securities or to acquire any Securities or on account of the
redemption provisions (other than as permitted by Section
13.3(b)), in violation of Section 13.3(a), or after the happening
of a Payment Default or after receipt by the Trustee of written
notice as provided in Section 13.3(b) of any other event of
default with respect to any Significant Senior Indebtedness,
then, unless and until such violation or event of default, as the
case may be, shall have been cured or waived or shall have ceased
to exist, such payment (subject to the provisions of Section
13.11) shall be held by the Trustee and shall be paid forthwith
over and delivered to the holders of Senior Indebtedness pro rata
as to each of such holders on the basis of the respective amounts
of Senior Indebtedness held by them or their Representatives, as
their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent
<PAGE> 100
necessary to pay all Senior Indebtedness in full in accordance
with its terms, after giving effect to any concurrent payment or
distribution or provision therefor to or for the holders of
Senior Indebtedness. The Company shall give prompt written
notice to the Trustee of any default under any Senior
Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
(d) The Company covenants that it will, upon request of the
Trustee, deliver an Officers' Certificate (with copies thereof to
the Representative of each class of Senior Indebtedness) showing
in reasonable detail the Senior Indebtedness outstanding as of
the date of such Officers' Certificate and the Representative of
each class of Senior Indebtedness. The Trustee may conclusively
rely thereon except to the extent that it shall have received,
from the Representative of any class of Senior Indebtedness,
notice in writing controverting any of the statements made
therein.
Not less than 10 days prior to making any distribution in
respect of Senior Indebtedness pursuant to this Section 13.3, the
Trustee shall deliver to each Representative of any class of
Senior Indebtedness copies of the most recent Officers'
Certificate filed with it by the Company pursuant to the
foregoing clause.
(e) In the event that the Securities of any series are
declared due and payable before their Stated Maturity in
accordance with Article 5 hereof, then and in such event the
holders of the Senior Indebtedness outstanding at the time
Securities of any series so become due and payable shall be
entitled to receive payment in full in cash or cash equivalents
of all amounts due or to become due on or in respect of such
Senior Indebtedness (whether or not an event of default has
occurred thereunder or such Senior Indebtedness is, or has been
declared to be, due and payable prior to the date on which it
otherwise would have become due and payable) before the Holders
of such Securities are entitled to receive payment on account of
the Securities.
Section 13.4. Securities May Be Paid Prior to Dissolution,
Etc. Nothing contained in this Article 13 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
insolvency, bankruptcy, dissolution, receivership, winding up,
liquidation, reorganization or similar proceedings, except upon
<PAGE> 101
the maturity of any Senior Indebtedness, except during the
continuance of any Payment Default and except during any 180-day
period specified in Section 13.3(b), from making payments at any
time of principal of or interest on the Securities or (b) the
application by the Trustee or any Paying Agent of any moneys
deposited, prior to the Trustee receiving notice of any event of
default as to which any holder of Senior Indebtedness has given
notice to the Trustee or after the lapse of any 180-day period
referred to in Section 13.3(b), with the Trustee or such Paying
Agent, for the purpose of paying a specified installment or
installments of interest on the Securities, to the payment of
such installments of interest on the Securities.
Section 13.5. When Distribution Must Be Paid Over. In the
event that the Company shall make any payment to the Trustee on
account of the principal or interest on the Securities at the
time when such payment is prohibited by Section 13.3, such
payment shall be held by the Trustee, in trust for the benefit
of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the amount of Senior Indebtedness held by
them) or their Representative or the trustee under the indenture
or other agreement (if any) pursuant to which Senior Indebtedness
may have been issued, as their respective interests may appear,
for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
If a distribution is made to Holders of Securities that,
because of this Article 13, should not have been made to them,
the Holders of Securities who receive the distribution shall hold
it in trust for the holders of Senior Indebtedness and forthwith
pay it over to them as their interests may appear.
Section 13.6. Notices by Company. The Company shall
promptly notify the Trustee and each Paying Agent of any facts
known to the Company that would cause a payment of principal of
or interest on the Securities to violate this Article 13, but
failure to give such notice shall not affect the subordination of
the Securities to the Senior Indebtedness provided in this
Article 13.
Section 13.7. Subrogation. After all Senior Indebtedness
is paid in full and until the Securities are paid in full,
Holders of Securities shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that
distributions otherwise payable to Holders of Securities have
been applied to the payment of Senior Indebtedness. A
<PAGE> 102
distribution made under this Article 13 to holders of Senior
Indebtedness which otherwise would have been made to Holders of
Securities, is not, as between the Company and the Holders of
Securities, payment by the Company on the Securities.
Section 13.8. Relative Rights. This Article defines the
relative rights of Holders of Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and the Holders of
Securities, the obligation of the Company, which is absolute
and unconditional, to pay principal of and interest on the
Securities in accordance with their terms;
(2) affect the relative rights of Holders of
Securities and creditors of the Company other than holders
of Senior Indebtedness; or
(3) prevent the Trustee or any Holder of a Security
from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise payable to
Holders of Securities.
If the Company fails because of this Article 13 to pay
principal of or interest on a Security on the due date or upon
the acceleration thereof, the failure is still a Default or Event
of Default.
Section 13.9. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Company or
by its failure to comply with this Indenture.
Section 13.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and
the notice given to their Representative.
<PAGE> 103
Section 13.11. Rights of Trustee and Paying Agent. The
Trustee and each Paying Agent may continue to make payments on
the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such
payment unless, not less than three Business Days prior to the
date of any such payment, the Trustee receives written notice
reasonably satisfactory to it that payments may not be made under
this Article 13. Only the Company, a Representative
satisfactorily identified to the Trustee) or a holder of an issue
of Senior Indebtedness that has no Representative (satisfactorily
identified to the Trustee) may give the notice. Prior to the
receipt of such notice, the Trustee and each Paying Agent shall
be entitled in all respects to assume that no such facts exist.
In any case, the Trustee shall have no responsibility to the
holders of Senior Indebtedness for payments made to Holders of
Securities by the Company or any Paying Agent unless such
payments are made at the direction of the Trustee.
Except to the extent of payments held in trust under Section
13.5 hereof, neither the Trustee nor any Paying Agent shall be
deemed to owe any fiduciary duty to the holders of Senior
Indebtedness. The Trustee shall not be under any duty or
obligation to take any action at the request or for the benefit
of holders of Senior Indebtedness which, in the Trustee's
opinion, shall be likely to involve it in any expense or
liability, if there are reasonable grounds for believing that a
repayment of such expense or liability is not reasonably assured
to it, unless one or more holders of Senior Indebtedness shall,
as often as may be required by the Trustee, furnish indemnity
satisfactory to the Trustee against such expense or liability.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have it if were
not Trustee.
________________________
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
<PAGE> 104
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
INFINITY BROADCASTING CORPORATION
By: ______________________________
Title:______________________________
[Seal]
Attest:
________________________
Secretary
______________________________
By:___________________________
Title:
[Seal]
Attest:
____________________
Title:
[EXECUTION COUNTERPART]
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of June 23, 1995 between
INFINITY BROADCASTING CORPORATION, a corporation duly
organized and validly existing under the laws of the State
of Delaware (the "Company"); each of the lenders identified
under the caption "BANKS" on the signature pages hereof
(individually, a "Bank" and, collectively, the "Banks"); THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association, as administrative agent for the Banks
(in such capacity, together with its successors in such
capacity, the "Administrative Agent"); BANK OF AMERICA
ILLINOIS, an Illinois banking corporation, BANK OF MONTREAL,
a bank organized under the laws of Canada, THE BANK OF NEW
YORK, a New York banking corporation, CHEMICAL BANK, a New
York banking corporation, COMPAGNIE FINANCI RE DE CIC ET DE
L'UNION EUROPEENNE, a company duly organized under and by
virtue of the law of France, THE FIRST NATIONAL BANK OF
BOSTON, a national banking association, and NATWEST BANK
N.A. (formerly NATIONAL WESTMINSTER BANK USA), a national
banking association, as co-agents for the Banks (in such
capacity, together with their respective successors in such
capacity, the "Co-Agents"); and CHEMICAL BANK, a New York
banking corporation, as collateral agent for the Banks (in
such capacity, together with its successors in such
capacity, the "Collateral Agent" and, together with the
Administrative Agent and the Co-Agents, the "Agents").
The Company, the Banks and the Agents are parties
to a Second Amended and Restated Credit Agreement dated as
of December 22, 1994 (as heretofore modified and
supplemented and in effect on the date hereof, the "Credit
Agreement"), providing, subject to the terms and conditions
thereof, for loans to be made by said Banks to the Company
and certain subsidiaries of the Company in an aggregate
principal amount not exceeding $700,000,000. As
contemplated by the Credit Agreement, certain of the Banks
made loans to Infinity Broadcasting Corporation of
California and Sagittarius Broadcasting Corporation, each of
which is a wholly owned subsidiary of the Company. The
loans made to each of Infinity Broadcasting Corporation of
California and Sagittarius Broadcasting Corporation by such
Banks are governed by separate Amended and Restated Loan
Agreements each dated as of December 22, 1994. Pursuant to
separate Assignment and Assumption Agreements each dated the
date hereof, each of Infinity Broadcasting Corporation of
California and Sagittarius Broadcasting Corporation now
proposes to assign the loans made to it by such Banks to the
Company and the Company proposes to assume such loans as
loans under the Credit Agreement. The Company, the Banks
and the Agents wish to amend the Credit Agreement to give
effect to the foregoing and in certain other respects.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise
defined in this Amendment No. 1, terms defined in the Credit
Agreement as amended (or as proposed to be amended) by this
Amendment No. 1 are used herein as defined therein.
Section 2. Amendments. Effective as of the
Amendment No. 1 Effective Date, the Credit Agreement and the
other Basic Documents shall be amended as follows:
2.01. References in the Credit Agreement and the
other Basic Documents to any of the Credit Agreement and the
other Basic Documents (including indirect references such as
"hereunder", "hereby", "herein" and "hereof" and
"thereunder", "thereby", "therein" and "thereof") shall be
deemed to be references to the Credit Agreement or such
other Basic Document (as the case may be), in each case as
amended hereby.
2.02. Section 1.01 of the Credit Agreement shall
be amended by (a) deleting the definition of "Permitted
Additional Debt", (b) adding the following new definitions
(to the extent not already included in said Section 1.01)
and inserting the same in the appropriate alphabetical
locations and (c) amending in their entirety the following
definitions (to the extent already included in said Section
1.01), as follows:
"Amendment No. 1" shall mean Amendment No. 1 to
this Agreement dated as of June 23, 1995.
"Amendment No. 1 Effective Date" shall mean the
date the amendments to the Credit Agreement and the
other Basic Documents provided for by Section 2 of
Amendment No. 1 become effective as provided in Section
4 of Amendment No. 1.
"Basic Documents" shall mean, collectively, this
Agreement, Amendment No. 1, the Subsidiary Loan
Agreements, the Notes, the Security Documents, the
Assignment Agreements and the Infinity Assignment
Agreements.
"Commitments" shall mean, collectively, the
Reducing Revolving Credit Commitments, the Acquisition
Loan Commitments and the Revolving Credit Commitments.
"Infinity Assignment Agreements" shall mean the
Assignment and Assumption Agreement dated as of June
23, 1995 between Infinity of California and the
Company, as modified and supplemented and in effect
from time to time, and the Assignment and Assumption
Agreement dated as of June 23, 1995 between SBC and the
Company, as modified and supplemented and in effect
from time to time.
"Infinity Reducing Revolving Credit Loans" shall
have the meaning assigned to such term in Section
2.01(a) hereof.
"Majority Banks" shall mean, at any time, Banks
holding at least 51% of the sum of (a) (i) if the
Reducing Revolving Credit Commitments are then in
effect, the aggregate amount of such Commitments
(whether or not used) or (ii) if the Reducing Revolving
Credit Commitments have expired or terminated, the
aggregate outstanding principal amount of the Loans
(including Money Market Loans) made under the Reducing
Revolving Credit Commitments, (b) (i) if the
Acquisition Loan Commitments are then in effect, the
aggregate amount of such Commitments (whether or not
used) or (ii) if the Acquisition Loan Commitments have
expired or terminated, the aggregate outstanding
principal amount of the Loans (including Money Market
Loans) made under the Acquisition Loan Commitments and
(c) (i) if the Revolving Credit Commitments are then in
effect, the aggregate amount of such Commitments
(whether used or unused) or (ii) if the Revolving
Credit Commitments have expired or terminated, the
aggregate outstanding principal amount of the Loans
(including Money Market Loans) made under the Revolving
Credit Commitments.
"Permitted Replacement Debt" shall have the
meaning assigned to such term in Section 8.07(b)
hereof.
"Permitted Replacement Subordinated Debt" shall
have the meaning assigned to such term in Section
8.07(b) hereof.
"Permitted Replacement Unsubordinated Debt" shall
have the meaning assigned to such term in Section
8.07(b) hereof.
"Principal Payment Date" shall mean: (a) with
respect to Infinity Reducing Revolving Credit Loans,
each Quarterly Date on which a principal payment in
respect of such Loans is required to be made pursuant
to Section 3.01(a) hereof; (b) with respect to Infinity
Acquisition Loans, each Quarterly Date on which a
principal payment in respect of such Loans is required
to be made pursuant to Section 3.01(b) hereof; and (c)
with respect to Subsidiary Loans made to any Subsidiary
Borrower, each Quarterly Date on which a principal
payment in respect of such Loans is required to be made
pursuant to the Subsidiary Loan Agreement to which such
Subsidiary Borrower is a party.
"Reducing Revolving Credit Commitment Reduction
Date" shall mean each Quarterly Date on which a
reduction in the aggregate amount of the Reducing
Revolving Credit Commitments becomes effective pursuant
to Section 3.01(a) hereof.
"Reducing Revolving Credit Commitment" shall mean,
as to each Bank, the obligation of such Bank to make
Reducing Revolving Credit Loans in an aggregate
principal amount at any one time outstanding up to but
not exceeding: (a) in the case of a Bank that is a
party to this Agreement on the Amendment No. 1
Effective Date, the aggregate outstanding principal
amount of such Bank's Term Loans immediately prior to
the Amendment No. 1 Effective Date; and (b) in the case
of any other Bank, the aggregate amount of the Reducing
Revolving Credit Commitments of other Banks acquired by
it pursuant to Section 11.06(a) hereof (in the case of
each of the foregoing clauses (a) and (b), as the same
may be reduced from time to time pursuant to Section
2.04 hereof or increased or reduced from time to time
pursuant to said Section 11.06(a)).
"Reducing Revolving Credit Commitment Termination
Date" shall mean the Quarterly Date occurring in June
2003.
"Reducing Revolving Credit Loans" shall mean,
collectively, Infinity Reducing Revolving Credit Loans
and Subsidiary Reducing Revolving Credit Loans.
"Remaining Available Equity Issuance Amount" shall
mean, as at any date of determination (the "Calculation
Date"), (I) if the Calculation Date occurs on or prior
to the Acquisition Loan Commitment Termination Date,
the sum of:
(a) the aggregate amount of all cash received by
the Company and its Restricted Subsidiaries in respect
of all Equity Issuances during the period commencing on
the Effective Date and ending on the Calculation Date
(net of expenses incurred by the Company and its
Restricted Subsidiaries in connection with such Equity
Issuances) minus
(b) the aggregate amount of cash Investments made
by the Company in Unrestricted Subsidiaries as
permitted by Section 8.08(h)(ii)(A) hereof during the
period commencing on the Effective Date and ending on
the Calculation Date minus
(c) the amount by which (i) the sum of (x) the
aggregate amount of cash payments made in respect of
repurchases of common stock of the Company as permitted
by Section 8.09(b)(ii)(A) hereof during the period
commencing on the Effective Date and ending on the
Calculation Date plus (y) the aggregate amount of cash
payments made in respect of redemptions, repurchases,
retirements or other acquisitions of Senior
Subordinated Notes as permitted by Section
8.09(c)(y)(ii)(A) hereof during the period commencing
on the Amendment No. 1 Effective Date and ending on the
Calculation Date exceeds (ii) $150,000,000 minus
(d) the aggregate amount of Restricted Payments
made in cash as permitted by Section 8.09(d)(ii)(A)
hereof during the period commencing on the Effective
Date and ending on the Calculation Date minus
(e) the amount by which (i) the aggregate amount
of cash payments made in respect of Acquisitions made
as permitted by Sections 8.12(d) and 8.12(e) hereof
during the period commencing on the Effective Date and
ending on the Calculation Date exceeds (ii) the sum of
(x) $250,000,000 plus (y) the amount by which (I)
Excess Cash Flow for the period commencing on the
Effective Date and ending on the Calculation Date
exceeds (II) the sum of (A) the Remaining Available
Excess Cash Flow Amount on the Calculation Date plus
(B) the amount of any reduction made in determining the
Remaining Available Excess Cash Flow Amount as of the
Calculation Date by reason of clause (e) of the
definition of "Remaining Available Excess Cash Flow
Amount"; and
(II) if the Calculation Date occurs after the
Acquisition Loan Commitment Termination Date, the sum
of:
(a) the June 1998 Remaining Available Equity
Issuance Amount plus the aggregate amount of all cash
received by the Company and its Restricted Subsidiaries
in respect of all Equity Issuances during the period
commencing on the day immediately following the
Acquisition Loan Commitment Termination Date and ending
on the Calculation Date (net of expenses incurred by
the Company and its Restricted Subsidiaries in
connection with such Equity Issuances) minus
(b) the aggregate amount of cash Investments made
by the Company in Unrestricted Subsidiaries as
permitted by Section 8.08(h)(ii)(A) hereof during the
period commencing on the day immediately following the
Acquisition Loan Commitment Termination Date and ending
on the Calculation Date minus
(c) the sum of (x) the aggregate amount of cash
payments made in respect of repurchases of common stock
of the Company as permitted by Section 8.09(b)(ii)(A)
hereof during the period commencing on the day
immediately following the Acquisition Loan Commitment
Termination Date and ending on the Calculation Date
plus (y) the aggregate amount of cash payments made in
respect of redemptions, repurchases, retirements or
other acquisitions of Senior Subordinated Notes as
permitted by Section 8.09(c)(y)(ii)(A) hereof during
the period commencing on the day immediately following
the Acquisition Loan Commitment Termination Date and
ending on the Calculation Date minus
(d) the aggregate amount of Restricted Payments
made in cash as permitted by Section 8.09(d)(ii)(A)
hereof during the period commencing on the day
immediately following the Acquisition Loan Commitment
Termination Date and ending on the Calculation Date
minus
(e) the aggregate amount of cash payments made in
respect of Acquisitions made as permitted by Sections
8.12(d) and 8.12(e) hereof during the period commencing
on the day immediately following the Acquisition Loan
Commitment Termination Date and ending on the
Calculation Date.
"Remaining Available Excess Cash Flow Amount"
shall mean, as at any date of determination (the
"Determination Date") in any Fiscal Year (the "Current
Fiscal Year"), the sum of:
(a) 100% of Excess Cash Flow for each Fiscal Year
preceding the Current Fiscal Year commencing with
Fiscal Year 1995 minus
(b) the aggregate amount of cash Investments made
by the Company in Unrestricted Subsidiaries as
permitted by Section 8.08(h)(ii)(B) hereof during the
period commencing on the Effective Date and ending on
the Determination Date minus
(c) the amount by which (i) the sum of (x) the
aggregate amount of cash payments made in respect of
repurchases of common stock of the Company as permitted
by Section 8.09(b)(ii)(B) hereof during the period
commencing on the Effective Date and ending on the
Determination Date plus (y) the aggregate amount of
cash payments made in respect of redemptions,
repurchases, retirements or other acquisitions of
Senior Subordinated Notes as permitted by Section
8.09(c)(y)(ii)(B) hereof during the period commencing
on the Amendment No. 1 Effective Date and ending on the
Determination Date exceeds (ii) $150,000,000 minus
(d) the aggregate amount of Restricted Payments
made in cash as permitted by Section 8.09(d)(ii)(B)
hereof during the period commencing on the Effective
Date and ending on the Determination Date minus
(e) the amount by which (i) the aggregate amount
of cash payments made (except to the extent such cash
payments are made with the proceeds of one or more
Equity Issuances) in respect of Acquisitions made as
permitted by Sections 8.12(d) and 8.12(e) hereof during
the period commencing on the Effective Date and ending
on the Determination Date exceeds (ii) $250,000,000.
"Subordinated Debt" shall mean, collectively, all
Indebtedness of the Company evidenced by the Senior
Subordinated Notes and Permitted Replacement
Subordinated Debt and other Indebtedness of the Company
incurred as permitted by Section 8.07(d) hereof, if (a)
such other Indebtedness is subordinated to the
obligations of the Company hereunder and under the
Guarantee Agreement as provided in Section
8.07(b)(iv)(A) hereof, and (b) none of the Restricted
Subsidiaries of the Company is directly or indirectly
liable (contingently or otherwise) for any of such
other Indebtedness, (c) such other Indebtedness is not
secured by any Property of the Company or any of its
Subsidiaries and (d) the incurrence of such other
Indebtedness and the incurrence of such other
Indebtedness as "Subordinated Debt" shall be permitted
by the Senior Subordinated Indenture, if then in
effect, and/or such other Subordinated Debt Documents
as are then in effect.
"Subsidiary Reducing Revolving Credit Loans" shall
mean, collectively, the HBC Reducing Revolving Credit
Loans and the Infinity of Boston Reducing Revolving
Credit Loans (after giving effect to Section 2.18(A) of
Amendment No. 1).
2.03. Clauses (iv) and (v) of Section 2.01(a) of
the Credit Agreement are deleted in their entirety, the
semi-colons at the end of clauses (ii) and (iii) of said
Section 2.01(a) are deleted and in lieu thereof are inserted
periods and clause (i) of said Section 2.01(a) is amended in
its entirety to read as follows:
(i) As of the Amendment No. 1 Effective Date, all
of the Infinity Term Loans under and as defined in the
Credit Agreement immediately prior to the Amendment No.
1 Effective Date and all of the Infinity of California
Term Loans and SBC Term Loans assumed by the Company
pursuant to the Infinity Assignment Agreements
outstanding immediately prior to the Amendment No. 1
Effective Date shall constitute "Loans" hereunder (and,
as such, shall constitute a utilization of each Bank's
Reducing Revolving Credit Commitment hereunder). Each
Bank severally agrees, on the terms and conditions of
this Agreement, to make additional loans under its
Reducing Revolving Credit Commitment to the Company on
any Business Day during the period from and including
the Amendment No. 1 Effective Date to but excluding the
Reducing Revolving Credit Commitment Termination Date
in an aggregate principal amount up to but not
exceeding at any one time outstanding the unused amount
of such Bank's Reducing Revolving Credit Commitment as
then in effect; provided that in no event shall the
aggregate principal amount of Reducing Revolving Credit
Loans, together with the aggregate principal amount of
all Money Market Loans made under the Reducing
Revolving Credit Commitments, exceed the aggregate
amount of the Reducing Revolving Credit Commitments as
in effect from time to time. Loans referred to in the
first sentence of this Section 2.01(a)(i) and Loans
made pursuant to the second sentence of this Section
2.01(a)(i) are herein collectively called "Infinity
Reducing Revolving Credit Loans".
2.04. The last sentence of Section 2.01(a) of the
Credit Agreement is amended in its entirety to read as
follows:
Subject to the terms and conditions of this Agreement,
(x) during the period referred to in the second
sentence of Section 2.01(a)(i), the Company (but not
any Restricted Subsidiary) may borrow, prepay and
reborrow the amount of the Reducing Revolving Credit
Commitments by means of Base Rate Loans and Eurodollar
Loans and may (as provided in Section 2.09 hereof)
Convert Infinity Reducing Revolving Credit Loans of one
Type into Infinity Reducing Revolving Credit Loans of
the other Type or Continue Infinity Reducing Revolving
Credit Loans of one Type as Infinity Reducing Revolving
Credit Loans of the same Type and (y) any Restricted
Subsidiary that is a borrower of Subsidiary Reducing
Revolving Credit Loans on the Amendment No. 1 Effective
Date may, subject to the provisions of the Subsidiary
Loan Agreement to which such Restricted Subsidiary is a
party, prepay Subsidiary Reducing Revolving Credit
Loans made to it on the terms and conditions (including
as to Type of Loan) set forth herein and in such
Subsidiary Loan Agreement.
2.05. Section 2.03(a) of the Credit Agreement is
amended in its entirety to read as follows:
(a) In addition to borrowings of Syndicated
Loans, at any time prior to (x) the Reducing Revolving
Credit Commitment Termination Date, in the case of
Money Market Loans made under the Reducing Revolving
Credit Commitments, or (y) the Acquisition Loan
Commitment Termination Date or the Revolving Credit
Commitment Termination Date, as the case may be, in the
case of Money Market Loans made under the Acquisition
Loan Commitments or the Revolving Credit Commitments,
respectively, the Company may, as set forth in this
Section 2.03, request the Banks to make offers to make
Money Market Loans to the Company in Dollars under the
Reducing Revolving Credit Commitments, the Acquisition
Loan Commitments or the Revolving Credit Commitments,
respectively. The Banks may, but shall have no
obligation to, make such offers and the Company may,
but shall have no obligation to, accept any such offers
in the manner set forth in this Section 2.03. Money
Market Loans may be LIBOR Market Loans or Set Rate
Loans (each a "Type" of Money Market Loan), provided
that:
(i) the aggregate principal amount of all
Money Market Loans under the Reducing Revolving
Credit Commitments, together with the aggregate
principal amount of all Reducing Revolving Credit
Loans, at any one time outstanding shall not
exceed the aggregate amount of the Reducing
Revolving Credit Commitments at such time;
(ii) the aggregate principal amount of all
Money Market Loans under the Acquisition Loan
Commitments, together with the aggregate principal
amount of all Acquisition Loans, at any one time
outstanding shall not exceed the aggregate amount
of the Acquisition Loan Commitments at such time;
(iii) the aggregate principal amount of all
Money Market Loans under the Revolving Credit
Commitments, together with the aggregate principal
amount of all Revolving Credit Loans, at any one
time outstanding shall not exceed the aggregate
amount of the Revolving Credit Commitments at such
time; and
(iv) no Money Market Loans may be borrowed
under the Reducing Revolving Credit Commitments,
the Acquisition Loan Commitments or the Revolving
Credit Commitments on or after the Reducing
Revolving Credit Commitment Termination Date, the
Acquisition Loan Commitment Termination Date or
the Revolving Credit Commitment Termination Date
(as the case may be).
2.06. Clause (x) of Section 2.03(c)(ii)(B) of the
Credit Agreement is amended in its entirety to read as
follows:
(x) may be greater or less than the Reducing Revolving
Credit Commitment, Acquisition Loan Commitment or
Revolving Credit Commitment of such Bank
2.07. Sections 2.03(g) and 2.03(h) of the Credit
Agreement are amended in their entirety to read as follows:
(g) Except for the purpose and to the extent
expressly stated in Section 2.04(a) hereof, the amount
of any Money Market Loan made by any Bank shall not
constitute a utilization of such Bank's Reducing
Revolving Credit Commitment, Acquisition Loan
Commitment or Revolving Credit Commitment, as the case
may be.
(h) The Company shall pay to the Administrative
Agent a fee of $3,000 each time the Company gives a
Money Market Quote Request to the Administrative Agent.
2.08. Section 2.04(a) of the Credit Agreement is
amended in its entirety to read as follows:
(a) Voluntary. The Company shall have the right
at any time or from time to time (i) so long as no
Reducing Revolving Credit Loans or Money Market Loans
made under the Reducing Revolving Credit Commitments
are outstanding, to terminate the Reducing Revolving
Credit Commitments, (ii) so long as no Acquisition
Loans or Money Market Loans made under the Acquisition
Loan Commitments are outstanding, to terminate the
Acquisition Loan Commitments, (iii) so long as no
Revolving Credit Loans or Money Market Loans made under
the Revolving Credit Commitments are outstanding, to
terminate the Revolving Credit Commitments, (iv) to
reduce the aggregate unused amount of the Reducing
Revolving Credit Commitments (for which purpose the
aggregate principal amount of Money Market Loans made
under the Reducing Revolving Credit Commitments shall
be deemed to be use of the Reducing Revolving Credit
Commitments), (v) to reduce the aggregate unused amount
of the Acquisition Loan Commitments (for which purpose
the aggregate principal amount of Money Market Loans
made under the Acquisition Loan Commitments shall be
deemed to be use of the Acquisition Loan Commitments)
and (vi) to reduce the aggregate unused amount of the
Revolving Credit Commitments (for which purpose the
aggregate principal amount of Money Market Loans made
under the Revolving Credit Commitments shall be deemed
to be use of the Revolving Credit Commitments);
provided that (x) the Company shall give notice of each
such termination or reduction as provided in Section
4.05 hereof and (y) each partial reduction of any Class
of Commitments shall be in an aggregate amount equal to
$1,000,000 or a multiple of $1,000,000 in excess
thereof.
2.09. Section 2.05(b) of the Credit Agreement is
amended in its entirety to read as follows:
(b) The Company shall pay to the Administrative
Agent a commitment fee on the daily average unused
amount of each Commitment (that was in effect
immediately prior to the Amendment No. 1 Effective
Date) held by any Bank for account of such Bank, for
the period from and including the day immediately
following the day through which accrued commitment fees
have been paid hereunder to but not including the
Amendment No. 1 Effective Date, at the rate per annum
specified in Section 2.05 of the Credit Agreement
immediately prior to the Amendment No. 1 Effective
Date. The Company shall pay to the Administrative
Agent for account of each Bank a commitment fee on the
daily average unused amount of each Class of Commitment
of such Bank, for the period from and including the
Amendment No. 1 Effective Date to but not including the
earlier of the date such Class of Commitment is
terminated and (i) the Reducing Revolving Credit
Commitment Termination Date, in the case of the
Reducing Revolving Credit Commitments, (ii) the
Acquisition Loan Commitment Termination Date, in the
case of the Acquisition Loan Commitments or (iii) the
Revolving Credit Commitment Termination Date, in the
case of the Revolving Credit Commitments, in each case
at a rate per annum equal to 1/4 of 1%. Accrued
commitment fee in respect of any Class of Commitments
shall be payable on each Quarterly Date and on the
earlier of the date the Commitments of such Class are
terminated and (x) the Reducing Revolving Credit
Commitment Termination Date, in the case of the
Reducing Revolving Credit Commitments, (y) the
Acquisition Loan Commitment Termination Date, in the
case of the Acquisition Loan Commitments, or (z) the
Revolving Credit Commitment Termination Date, in the
case of the Revolving Credit Commitments.
2.10. Section 3.01(a) of the Credit Agreement is
amended in its entirety to read as follows:
(a) (i) Repayments of Infinity Reducing Revolving
Credit Loans. The Company hereby promises to pay to
the Administrative Agent for account of each Bank the
entire outstanding principal amount of such Bank's
Infinity Reducing Revolving Credit Loans, and each
Infinity Reducing Revolving Credit Loan shall mature,
on the Reducing Revolving Credit Commitment Termination
Date. In addition, if following any Reducing Revolving
Credit Commitment Reduction Date specified below or
mandatory prepayment event specified in Section 3.04
hereof, the aggregate outstanding principal amount of
the Reducing Revolving Credit Loans and Money Market
Loans made under the Reducing Revolving Credit
Commitments exceeds the aggregate amount of the
Reducing Revolving Credit Commitments, the Company
shall pay Infinity Reducing Revolving Credit Loans
and/or cause Subsidiary Reducing Revolving Credit Loans
to be paid in an aggregate amount equal to such excess.
(ii) Reductions of Reducing Revolving Credit
Commitments. The aggregate amount of the Reducing
Revolving Credit Commitments shall be automatically
reduced to zero at the opening of business on the
Reducing Revolving Credit Commitment Termination Date.
In addition, the aggregate amount of the Reducing
Revolving Credit Commitments shall be automatically
reduced (x) at the close of business on June 30, 1998
to an amount equal to the aggregate principal amount of
Reducing Revolving Credit Loans outstanding on such
date and (y) on each Reducing Revolving Credit
Commitment Reduction Date set forth below by an amount
equal to the product of (i) the aggregate amount of the
Reducing Revolving Credit Commitments that are in
effect at the close of business on June 30, 1998 times
(ii) the percentage set forth below opposite the
related Reducing Revolving Credit Commitment Reduction
Date:
Reducing Revolving Credit
Commitment Reduction Date
Occurring In:
Percentage
September 1998 6.250%
December 1998 6.250%
March 1999 3.750%
June 1999 3.750%
September 1999 3.750%
December 1999 3.750%
March 2000 4.375%
June 2000 4.375%
September 2000 4.375%
December 2000 4.375%
March 2001 5.000%
June 2001 5.000%
September 2001 5.000%
December 2001 5.000%
March 2002 5.000%
June 2002 5.000%
September 2002 5.000%
December 2002 5.000%
March 2003 7.500%
2.11. Section 3.04(d) of the Credit Agreement is
amended in its entirety to read as follows:
(d) Permitted Replacement Debt Issuances. Upon
the receipt by the Company during the period commencing
on the Amendment No. 1 Effective Date to but excluding
December 31, 1995 of the proceeds of Permitted
Replacement Debt incurred as permitted by Section
8.07(b) hereof, the principal of the Loans shall be
prepaid (as specified in paragraph (g) below) in an
amount equal to 100% of the net cash proceeds of such
Permitted Replacement Debt, provided that no prepayment
of the Loans shall be required to be made pursuant to
this sentence unless and until the aggregate principal
amount of Permitted Replacement Debt incurred as
permitted by said Section 8.07(b) exceeds $200,000,000
and then only the amount of such excess shall be
required to be so prepaid. Upon the receipt by the
Company on or after December 31, 1995 of the proceeds
of Permitted Replacement Debt incurred as permitted by
Section 8.07(b) hereof, the principal of the Loans
shall be prepaid (as specified in paragraph (g) below)
in an amount equal to 100% of the net cash proceeds of
such Permitted Replacement Debt. For purposes of this
Section 3.04(d), "net cash proceeds" shall mean all
cash amounts received by the Company in respect of such
Indebtedness net of expenses (including underwriting
commissions) incurred in connection therewith.
2.12. Sections 8.07(b) and 8.07(c) of the Credit
Agreement are amended in their entirety to read as follows:
(b) (x) the Senior Subordinated Notes and (y)
other Indebtedness of the Company that is incurred
solely to refinance the Loans or the Senior
Subordinated Notes and is either (1) subordinated to
the obligations of the Company hereunder and under the
Guarantee Agreement as provided in clause (iv) below
(such subordinated Indebtedness being herein called
"Permitted Replacement Subordinated Debt") or (2) is
not so subordinated (such unsubordinated Indebtedness
being herein called "Permitted Replacement
Unsubordinated Debt" and, together with Permitted
Replacement Subordinated Debt, "Permitted Replacement
Debt"), provided that (i) the Company, at or prior to
the time any Permitted Replacement Debt is incurred,
notifies the Administrative Agent whether such
Permitted Replacement Debt is Permitted Replacement
Subordinated Debt or Permitted Replacement
Unsubordinated Debt (such notice to specify the amount
of such Permitted Replacement Debt), (ii) the aggregate
principal amount of Permitted Replacement Debt incurred
does not exceed $400,000,000, (iii) no part of any
Permitted Replacement Debt matures or is required to be
paid, prepaid, redeemed, purchased or otherwise
acquired by the Company or any of its Restricted
Subsidiaries (other than pursuant to a requirement that
it be paid or prepaid by reason of acceleration upon or
following the occurrence of an event of default) prior
to 2004, (iv) if such Permitted Replacement Debt is
Permitted Replacement Subordinated Debt, (A) it is
subordinated to the obligations of the Company
hereunder and under the Guarantee Agreement on terms
satisfactory to the Majority Banks (except that, if
such Permitted Replacement Subordinated Debt is
incurred pursuant to and governed by agreements and
instruments each of the terms of which relating to
subordination is as favorable to the Banks in respect
of the obligations of the Company in respect of the
Loans hereunder as the terms of the Senior Subordinated
Notes and the Senior Subordinated Indenture, such terms
shall be deemed to be satisfactory to the Majority
Banks), and (B) none of the Restricted Subsidiaries of
the Company is directly or indirectly liable
(contingently or otherwise) therefor, (v) Restricted
Subsidiaries that Guarantee the Loans pursuant to the
Guarantee Agreement may Guarantee Permitted Replacement
Unsubordinated Debt (but not Permitted Replacement
Subordinated Debt), (vi) no Permitted Replacement Debt
shall be secured by any Property of the Company or any
of its Restricted Subsidiaries, (vii) all Permitted
Replacement Debt is incurred pursuant to and governed
by agreements and instruments none of the terms and
conditions (other the rate of interest and fees) of
which is more onerous to the Company than the
corresponding terms and conditions of this Agreement,
(viii) no later than five Business Days prior to the
incurrence of any Permitted Replacement Debt, the
Company shall have furnished to the Banks copies of the
agreements and instruments that will govern such
Permitted Replacement Debt and the Majority Banks shall
not have objected to the terms of such agreements and
instruments by the date three Business Days after
receipt by the Banks of such copies, (ix) immediately
prior to the incurrence of such Permitted Replacement
Debt and after giving effect thereto, no Default has
occurred and is continuing and (x) the Administrative
Agent has received a certificate of a Senior Officer of
the Company setting forth in reasonable detail the
computations necessary to determine that the Company
is, and will be, in compliance with the terms of this
Agreement both immediately prior, and after giving
effect, to the incurrence of such Permitted Replacement
Debt;
(c) [Intentionally Omitted]; and
2.13. Section 8.08(h) of the Credit Agreement is
amended in its entirety to read as follows:
(h) Investments by the Company in Unrestricted
Subsidiaries consisting of capital stock of the Company
or cash (whether by way of investments in capital stock
of, or loans or advances to, any Unrestricted
Subsidiary), provided that (i) no such Investment shall
be made if a Default has occurred and is continuing or
would occur after giving effect to such Investment,
(ii) no such cash Investment shall be made on any date
if, after giving effect thereto, (A) the Remaining
Available Equity Issuance Amount is less than zero and
(B) the Remaining Available Excess Cash Flow Amount is
less than zero or (C) the sum of the Remaining
Available Equity Issuance Amount plus the Remaining
Available Excess Cash Flow Amount plus $75,000,000 is
less than zero and (x) no such cash Investment shall be
made as permitted by clauses (B) and (C) of this
Section 8.08(h)(ii) if, after giving effect thereto,
the aggregate amount of cash Investments made by
Unrestricted Subsidiaries in Westwood One, Inc. with
the proceeds of cash Investments made by the Company in
such Unrestricted Subsidiaries on and after the
Effective Date pursuant to said clauses is greater than
50% of the aggregate amount of all cash Investments
made by the Company in Unrestricted Subsidiaries on and
after the Effective Date as permitted by said clauses
and (y) no such cash Investment shall be made pursuant
to said clauses after the Acquisition Loan Commitment
Termination Date and (iii) any such cash Investment
made by way of a loan or advance is evidenced by one or
more promissory notes and such promissory notes are
delivered to the Collateral Agent under the Security
Agreement as collateral security for the Secured
Obligations (as defined in the Security Agreement)
promptly upon the making of the related loan or
advance, such promissory notes to constitute Pledged
Debt under and as defined in the Security Agreement;
2.14. Section 8.09 of the Credit Agreement is
amended by relettering clause "(c)" thereof as clause "(d)"
and by inserting therein new clause (c) to read as follows:
(c) (x) if the Company has incurred at least
$200,000,000 of Permitted Replacement Debt as permitted
by Section 8.07(b) hereof, cash payments made by the
Company to redeem, repurchase, retire or otherwise
acquire Senior Subordinated Notes, provided that no
Default has occurred and is continuing or would occur
and be continuing after giving effect to each such
redemption, repurchase, retirement or other
acquisition; and (y) if the Company has not incurred at
least $200,000,000 of Permitted Replacement Debt as
permitted by Section 8.07(b) hereof, cash payments made
by the Company to redeem, repurchase, retire or
otherwise acquire Senior Subordinated Notes, provided
that (i) no Default has occurred and is continuing or
would occur and be continuing after giving effect to
each such redemption, repurchase, retirement or other
acquisition and (ii) no such redemption, repurchase,
retirement or other acquisition shall be made on any
date if, after giving effect thereto, (A) the Remaining
Available Equity Issuance Amount is less than zero and
(B) the sum of the Remaining Available Excess Cash Flow
Amount plus $150,000,000 is less than zero and no such
repurchase shall be made as permitted by this Section
8.09(c)(y)(ii)(B) after the Acquisition Loan Commitment
Termination Date; and
2.15. Section 8.10(a) of the Credit Agreement is
amended in its entirety to read as follows: "[Intentionally
Omitted]".
2.16. Section 8.17 of the Credit Agreement is
amended in its entirety to read as follows:
8.17 Use of Proceeds. The Company will, and will
cause each Subsidiary Borrower to, use the proceeds of
the Loans solely for the following purposes:
(a) the proceeds of Reducing Revolving Credit
Loans will be used solely for general corporate
purposes of the Company and its Restricted
Subsidiaries, including for working capital, and also
(i) for Capital Expenditures made as permitted by
Section 8.05 hereof, (ii) to refinance Indebtedness of
the Company and its Restricted Subsidiaries, (iii) for
cash Investments made as permitted by Section 8.08(h)
hereof, (iv) for Restricted Payments made as permitted
by Section 8.09(b), Section 8.09(c) or Section 8.09(d)
hereof and (v) to finance Acquisitions of Stations
(including net working capital of Stations so Acquired)
permitted by Section 8.12 hereof (in compliance with
all applicable legal and regulatory requirements);
(b) the proceeds of Acquisition Loans made to the
Company will be used solely for the purpose of
financing Acquisitions of Stations (including net
working capital of Stations so Acquired) by Restricted
Subsidiaries permitted by Section 8.12 hereof (in
compliance with all applicable legal and regulatory
requirements);
(c) the proceeds of Acquisition Loans made to any
Subsidiary Borrower will be used solely for the purpose
of financing the Acquisition of a Station (including
net working capital of the Station so Acquired) by such
Subsidiary Borrower or for the purpose of refinancing
Acquisition Loans made to the Company in connection
with such Acquisition (in compliance with all
applicable legal and regulatory requirements); and
(d) the proceeds of Revolving Credit Loans will be
used solely for general corporate purposes of the
Company and its Restricted Subsidiaries, including for
working capital, and also (i) for Capital Expenditures
made as permitted by Section 8.05 hereof, (ii) to
refinance Indebtedness of the Company and its
Restricted Subsidiaries, (iii) for cash Investments
made as permitted by Section 8.08(h) hereof, (iv) for
Restricted Payments made as permitted by Section
8.09(b), Section 8.09(c) or Section 8.09(d) hereof and
(v) to finance Acquisitions of Stations (including net
working capital of Stations so Acquired) permitted by
Section 8.12 hereof (in compliance with all applicable
legal and regulatory requirements).
2.17. Section 8.22(b) of the Credit Agreement is
amended by substituting the words "Permitted Replacement
Debt" for the words "Permitted Replacement Subordinated
Debt" at the end thereof.
2.18. Without in any way limiting the other
provisions of this Section 2, the Credit Agreement and the
other Basic Documents are hereby further amended as follows:
(A) each reference in the Credit Agreement and the
other Basic Documents to a Term Loan or Term Loans and to
terms incorporating references to a Term Loan or Term Loans
is hereby amended to be a reference to a Reducing Revolving
Credit Loan or Reducing Revolving Credit Loans (as the case
may be);
(B) each reference to a Commitment or Commitments
in the Credit Agreement and the other Basic Documents is
hereby amended to be a reference to a Reducing Revolving
Credit Commitment or the Reducing Revolving Credit
Commitments and any word such as the word "either" that
implies that there are only two Classes of Commitments shall
be deemed to encompass all three Classes of Commitments; and
(C) each reference in the Credit Agreement
relating to or requiring a mandatory prepayment of Term
Loans shall be deemed to be a reference relating to or
requiring a mandatory reduction in the Reducing Revolving
Credit Commitments and any such mandatory reduction in the
Reducing Revolving Credit Commitments shall be given effect
in the same manner as if such mandatory reduction were a
mandatory prepayment of Term Loans.
Section 3. Representations and Warranties. The
Company represents and warrants to the Banks that (a) the
representations and warranties made by the Company in
Section 7 of the Credit Agreement, and by each Obligor in
each of the other Basic Documents to which such Obligor is a
party, are true in all material respects on and as of the
date hereof with the same force and effect as if made on and
as of the date hereof (or, if any such representation or
warranty is expressly stated to have been made as of a
specific date, as of such specific date) and as if each
reference in said Section 7 to the Credit Agreement and the
Notes and elsewhere in the other Basic Documents included
reference to the Credit Agreement as amended by this
Amendment No. 1, (b) no Default has occurred and is
continuing on and as of the date hereof and (c) each other
Obligor and each Subsidiary Borrower has appointed the
Company as its agent for the purpose of executing and
delivering this Amendment No. 1 and, by its signature below,
the Company confirms to each Bank and each Agent that each
other Obligor and each Subsidiary Borrower consents to this
Amendment No. 1 and confirms its obligations under each of
the Basic Documents to which it is a party.
Section 4. Conditions Precedent. As provided in
Section 2 above, the amendments to the Credit Agreement set
forth in said Section 2 shall become effective, as of the
Amendment No. 1 Effective Date, upon the satisfaction of the
following conditions precedent:
4.01. Execution. This Amendment No. 1 shall have
been executed and delivered by the Company, the
Administrative Agent and each of the Banks.
4.02. Documents. The Administrative Agent shall
have received the following documents, each of which shall
be satisfactory to the Agent in form and substance:
(1) Corporate Documents. Such certified copies
of the charter and by-laws (or equivalent documents) of
the Company and each other Obligor (or, in the
alternative, a certification to the effect that none of
such documents has been modified since delivery thereof
on the Closing Date pursuant to the Credit Agreement)
and of all corporate authority for the Company and each
other Obligor (including, without limitation, board of
director resolutions and evidence of the incumbency of
officers for the Company) with respect to the
execution, delivery and performance of this Amendment
No. 1, the Credit Agreement as amended hereby and the
other agreements, instruments and documents
contemplated hereby and each other document to be
delivered by the Company or such Obligor from time to
time in connection with the Credit Agreement as amended
hereby as the Administrative Agent may request (and
each Agent and each Bank may conclusively rely on such
certificate until it receives notice in writing from
the Company to the contrary).
(2) Opinion of Counsel to the Company. An
opinion of Debevoise & Plimpton, counsel to the
Company, in form and substance satisfactory to the
Administrative Agent (and the Company hereby instructs
such counsel to deliver such opinion to the Banks and
the Agent).
(3) Opinion of Special New York Counsel to Chase.
An opinion of Milbank, Tweed, Hadley & McCloy, special
New York counsel to Chase, in form and substance
satisfactory to the Administrative Agent (and Chase
hereby instructs such counsel to deliver such opinion
to the Banks).
(4) Other Documents. Such other documents and
evidence (including, without limitation, evidence that
each of the Infinity Assignment Agreements have been
duly executed and delivered by the intended parties
thereto and are in full force and effect) as the
Administrative Agent or any Bank or special New York
counsel to Chase may reasonably request.
Section 5. Miscellaneous. Except as herein
provided, the Credit Agreement and the other Basic Documents
shall remain unchanged and in full force and effect. This
Amendment No. 1 may be executed in any number of
counterparts, all of which taken together shall constitute
one and the same amendatory instrument and any of the
parties hereto may execute this Amendment No. 1 by signing
any such counterpart. This Amendment No. 1 shall be
governed by, and construed in accordance with, the law of
the State of New York.<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment No. 1 to be duly executed and delivered as of
the day and year first above written.
INFINITY BROADCASTING CORPORATION
By
Name: Farid Suleman
Title: Vice President - Finance
BANKS
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By
Name:
Title:
ABN AMRO BANK N.V.
By
Name:
Title:
By
Name:
Title:
BANK OF AMERICA ILLINOIS
By
Name:
Title: <PAGE>
THE BANK OF CALIFORNIA, N.A.
By
Name:
Title:
BANK OF IRELAND, GRAND CAYMAN
BRANCH
By
Name:
Title:
BANK OF MONTREAL
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
THE BANK OF NOVA SCOTIA
By
Name:
Title:<PAGE>
BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
BANQUE PARIBAS
By
Name:
Title:
By
Name:
Title:
CHEMICAL BANK
By
Name:
Title:
COMPAGNIE FINANCI RE DE CIC ET DE
L'UNION EUROPEENNE
By
Name:
Title:
By
Name:
Title: <PAGE>
CORESTATES BANK, N.A.
By
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By
Name:
Title:
THE DAIWA BANK, LIMITED
By
Name:
Title:
By
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
Name:
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By
Name:
Title: <PAGE>
THE FUJI BANK, LIMITED
By
Name:
Title:
LTCB TRUST COMPANY
By
Name:
Title:
MIDLAND BANK plc, NEW YORK BRANCH
By
Name:
Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
Name:
Title:
NATIONAL BANK OF CANADA
By
Name:
Title:
By
Name:
Title:
NATWEST BANK N.A. (formerly
NATIONAL WESTMINSTER BANK USA)
By
Name:
Title: <PAGE>
NATIONSBANK OF TEXAS, N.A.
By
Name:
Title:
NBD BANK, N.A.
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
Name:
Title:
ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By
Name:
Title: <PAGE>
SOCIETE GENERALE
By
Name:
Title:
SOCIETY NATIONAL BANK
By
Name:
Title:
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By
Name:
Title:
UNION BANK
By
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD.,
NEW YORK BRANCH
By
Name:
Title:
AGENTS
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By
Name:
Title: <PAGE>
BANK OF AMERICA ILLINOIS,
as Co-Agent
By
Name:
Title:
BANK OF MONTREAL,
as Co-Agent
By
Name:
Title:
THE BANK OF NEW YORK,
as Co-Agent
By
Name:
Title:
BANQUE FRANCAISE
DE COMMERCE EXTERIEURE
By
CHEMICAL BANK,
as Co-Agent
By
Name:
Title:
<PAGE>
COMPAGNIE FINANCI RE DE CIC ET DE
L'UNION EUROPEENNE,
as Co-Agent
By
Name:
Title:
By
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent
By
Name:
Title:
NATWEST BANK N.A. (formerly
NATIONAL WESTMINSTER BANK USA),
as Co-Agent
By
Name:
Title:
CHEMICAL BANK,
as Collateral Agent
By
Name:
Title:
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
___________________________________________________
The Board of Directors
Infinity Broadcasting Corporation:
We consent to the use of our report incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the
Prospectus.
KPMG PEAT MARWICK LLP
New York, New York
July 17, 1995
