<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 3, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
HERITAGE MEDIA CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
IOWA 42-1299303
(State of (I.R.S. Employer Identification
Incorporation) No.)
</TABLE>
--------------------------
13355 NOEL ROAD, SUITE 1500
DALLAS, TEXAS 75240
(214) 702-7380
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
--------------------------
DAVID N. WALTHALL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HERITAGE MEDIA CORPORATION
13355 NOEL ROAD, SUITE 1500
DALLAS, TEXAS 75240
(214) 702-7380
(Address, including zip code, and telephone number, including area
code, of registrant's agent for service)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
BRUCE H. HALLETT SARAH JONES BESHAR
Crouch & Hallett, L.L.P. Davis Polk & Wardwell
717 N. Harwood Street, Suite 1400 450 Lexington Avenue
Dallas, Texas 75201 New York, New York 10017
(214) 953-0053 (212) 450-4131
</TABLE>
--------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable 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 AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE (1) REGISTRATION FEE (2)
<S> <C> <C>
Subordinated debentures or notes................................ $300,000,000 $103,449
</TABLE>
(1) Such amount in U.S. dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial offering price for all securities of
$300,000,000.
(2) The registration fee has been calculated in accordance with the provisions
of Rule 457(c) under the Securities Act of 1933, as amended, and reflects
the offering price rather than the principal amount of any Subordinated
debentures or notes issued at a discount.
--------------------------
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 3, 1995
PROSPECTUS
$300,000,000
HERITAGE MEDIA CORPORATION
SUBORDINATED DEBENTURES AND NOTES
------------------
Heritage Media Corporation (the "Company") may offer and issue from time to
time its unsecured subordinated debentures or notes (the "Securities") for an
aggregate initial offering price not to exceed $300,000,000. The Securities may
be offered in one or more separate series, in amounts, at prices and on terms to
be determined by market conditions at the time of sale and to be set forth in a
supplement or supplements to this Prospectus (a "Prospectus Supplement"). Any
Securities may be offered with other Securities or separately.
Certain terms of any Securities in respect of which this Prospectus is being
delivered will be set forth in the accompanying Prospectus Supplement including,
where applicable, the specific designation, aggregate principal amount, purchase
price, authorized denominations, maturity, prepayment, interest rate and time
and dates of payment of interest (if any), terms (if any) for the redemption or
exchange thereof, listing (if any) on a securities exchange and any other
specific terms of the Securities.
The Securities will be subordinated in right of payment to all present and
future Senior Indebtedness (as defined herein) of the Company to the extent
described herein and in the Prospectus Supplement. The Prospectus Supplement
will also contain information about certain United States federal income tax
considerations relating to the Securities, if applicable.
------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 HEREOF FOR A DISCUSSION OF CERTAIN
RISKS ASSOCIATED WITH AN INVESTMENT IN THE SECURITIES.
---------------------
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 ON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Securities may be sold on a negotiated or competitive bid basis to or
through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time. See "Plan of
Distribution." Certain terms of the offering and sale of the Securities,
including, where applicable, the names of the underwriters, dealers or agents,
if any, the principal amount or number of shares to be purchased, the purchase
price of the Securities and the proceeds to the Company from such sale, and any
applicable commissions, discounts and other items constituting compensation of
such underwriters, dealers or agents, will be set forth in the accompanying
Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
The date of this Prospectus is , 1995
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Heritage Media Corporation (the "Company"
or "Heritage" and, where the context indicates, includes its subsidiaries) with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Prospectus by reference:
1. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 (the "Form 10-K"); and
2. the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995, June 30, 1995 and September 30, 1995, which contain the
unaudited consolidated condensed financial statements of the Company.
All documents hereafter filed by the Company with the Commission, pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in and to be a part of this Prospectus
from the date of filing of such documents. Any statements contained 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 shall not be deemed a part of this Prospectus, except as so modified,
and any statement so superseded shall not be deemed to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner of a security, to whom a Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
documents which are incorporated by reference herein, other than exhibits to
such information (unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to the Company at
its principal executive offices, One Galleria Tower, 13355 Noel Road, Suite
1500, Dallas, Texas 75240, Attention: Secretary, telephone: (214) 702-7380.
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVER-ALLOT
OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
THE COMPANY
Heritage Media Corporation, through its Actmedia, Inc. ("Actmedia")
subsidiary, is the world's largest independent provider of in-store marketing
products and services, primarily to consumer packaged goods manufacturers. The
Company is also a participant in the broadcast industry through its ownership of
four network affiliated television stations in small to mid-sized markets and 17
radio stations in seven major markets.
On October 23, 1995, the Company entered into an agreement to acquire DIMAC
Corporation ("DIMAC"). See "Recent Developments." DIMAC is the largest full
service, vertically integrated direct marketing services company in the United
States.
The Company's executive offices are located at One Galleria Tower, 13355
Noel Road, Suite 1500, Dallas, Texas 75240, and its telephone number is
214-702-7380.
RISK FACTORS
Prospective purchasers should consider carefully, in addition to the other
information contained in this Prospectus, the following factors:
LEVERAGE; RESTRICTIONS IMPOSED BY LENDERS
The Company has incurred substantial indebtedness in connection with the
acquisitions of its businesses. In June 1992, Heritage Media Services, Inc.
("HMSI"), a wholly-owned subsidiary of the Company, issued $150,000,000
principal amount of 11% Senior Secured Notes Due 2002 ("HMSI Notes") and entered
into a revolving credit and term loan agreement (the "Credit Agreement") under
which HMSI may borrow up to $130 million. As of September 30, 1995, HMSI had
borrowed $120.4 million under the Credit Agreement. In October 1992, the Company
issued $50,000,000 principal amount of 11% Senior Subordinated Notes (the "1992
Notes") due October 1, 2002. The Securities will rank PARI PASSU with the 1992
Notes and will be structurally subordinate to the HMSI Notes, the Credit
Agreement and all other indebtedness of the Company and its subsidiaries.
As of September 30, 1995, Heritage had indebtedness (long-term debt,
including current installments and notes payable) of approximately $355.4
million and stockholders' equity of approximately $108.7 million, and
accordingly, a consolidated debt-to-equity ratio of approximately 3.3 to 1. The
Company expects to incur substantial additional indebtedness in connection with
the acquisition of DIMAC. See "Recent Developments." Such leverage may adversely
affect the ability of the Company to finance its future operations and capital
needs and may limit its ability to pursue other business opportunities which may
be in its interests.
The discretion of the management of the Company with respect to certain
business matters is limited by covenants contained in the Indenture with respect
to the Securities (the "Indenture"), the Credit Agreement, the Indenture with
respect to the 1992 Notes (the "1992 Indenture") and the Indenture with respect
to the HMSI Notes (the "HMSI Indenture"). The restricted activities include,
among other matters, certain mergers, acquisitions and asset sales, capital
expenditures, certain investments, the incurrence of additional debt, sale and
leaseback transactions, the payment of dividends and other similar payments and
transactions with affiliates.
As a result of its leverage and in order to repay existing indebtedness, the
Company will be required to continue to generate substantial operating cash
flow. The ability of the Company to meet these requirements will depend on,
among other things, prevailing economic conditions and financial, business and
other factors, some of which are beyond its control, and there can be no
assurance that it will be able to meet such requirements.
HOLDING COMPANY STRUCTURE
As a holding company with no material operations of its own and no material
assets other than the stock of its operating subsidiaries, the Company is
dependent upon distributions from its operating subsidiaries to service its debt
obligations, including the Securities. The ability of the Company's
3
<PAGE>
subsidiaries to pay such distributions will be subject to, among other things,
applicable state laws. At September 30, 1995, the HMSI Indenture and the Credit
Agreement would have permitted dividends by the Company's subsidiaries to the
Company, subject to certain exceptions, in the amount of approximately $82
million. The Company presently expects, although is not required, to redeem the
HMSI Notes and to refinance the indebtedness under the Credit Agreement on June
15, 1997. Claims of creditors of the Company's subsidiaries, including the
holders of the HMSI Notes and the lenders under the Credit Agreement, will
generally have priority to the assets of such subsidiaries over the claims of
the Company and the holders of the Company's indebtedness.
ABSENCE OF PUBLIC MARKET FOR THE SECURITIES
The Securities comprise a new issue of securities for which there is
currently no public market. If the Securities are traded after their initial
issuance, they may trade at a discount from their initial offering price,
depending upon prevailing interest rates, the market for similar securities,
performance of the Company and other factors. The Company does not intend to
apply for listing of the Securities on any securities exchange.
USE OF PROCEEDS
Except as set forth in a Prospectus Supplement, the Company intends to use
the net proceeds from the sale of Securities for general corporate purposes,
including working capital, capital expenditures, investments in or loans to
subsidiaries, refinancing of debt, satisfaction of other obligations, possible
repurchases of capital stock and possible future acquisitions (including the
proposed acquisition of DIMAC) or such other purposes as may be specified in the
Prospectus Supplement. See "Recent Developments."
RECENT DEVELOPMENTS
On October 23, 1995, the Company entered into an agreement (the "Merger
Agreement") with DIMAC. Pursuant to the Merger Agreement, a subsidiary of the
Company would merge with DIMAC, resulting in DIMAC's becoming a wholly-owned
subsidiary of the Company. As a result of the merger, each share of DIMAC common
stock would be converted into the right to receive $28 in cash. The Company may
elect to pay up to $7 of the $28 merger price by issuing shares of the Company's
Class A Common Stock.
Consummation of the merger with DIMAC is subject to approval of the
transaction by the DIMAC stockholders and certain other customary closing
conditions. The Company anticipates that the merger will be consummated in the
first quarter of 1996.
The Company anticipates that the merger with DIMAC will be financed
substantially through a combination of senior bank financing and subordinated
debt financing (including the possible issuance of Securities).
DIMAC was founded in 1921 and has evolved into the largest full service,
vertically-integrated direct marketing services company in the United States.
DIMAC creates and implements comprehensive, custom-tailored marketing programs
to enable clients nationwide to focus their marketing expenditures on a highly
targeted potential customer base. As a full service, vertically-integrated firm,
DIMAC provides every component of a complete direct marketing program, including
customized market research, strategic and creative planning, creation and
management of relational databases, telemarketing, media buying, production
services, fulfillment services and subsequent program analysis. Throughout the
last thirty years, DIMAC has successfully expanded the range of its marketing
services and increased the size of its customer base to include major
corporations such as AT&T, American Express, Blockbuster Video, The Walt Disney
Company, several Blue Cross/Blue Shield organizations, Medco Containment
Services and a significant number of all U.S. public television stations.
4
<PAGE>
For the year ended December 31, 1994 and for the six months ended June 30,
1995, DIMAC had sales of approximately $100.0 million and $56.0 million,
respectively, and income before provision for income taxes and extraordinary
item of $4.85 million and $4.7 million, respectively.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31
SEPTEMBER 30, --------------------------------------------------
1995 1994 1993 1992 (2) 1991 (2)
--------------- --------- --------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (1)............... 1.77 1.78 1.09 -- --
<CAPTION>
1990 (2)
-------------
<S> <C>
Ratio of earnings to fixed charges (1)............... --
</TABLE>
- ------------------------
(1) For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consists of income from continuing operations before income
taxes, extraordinary items, minority interest and fixed charges. "Fixed
charges" consists of interest expense, debt amortization costs and one-third
of rental expense representing the interest portion of rental payments made
under operating leases.
(2) For the years ended December 31, 1992, 1991 and 1990, earnings were
insufficient to cover fixed charges by $13,386, $18,832 and $28,774,
respectively.
5
<PAGE>
BUSINESS
The Company, through its Actmedia subsidiary, is the world's largest
independent provider of in-store marketing products and services, primarily to
consumer packaged goods manufacturers. The Company also owns and operates four
network affiliated television stations in small to mid-sized markets and 17
radio stations in seven major markets. For the year ended December 31, 1994,
in-store marketing constituted approximately 72.4% of the Company's total
revenues, and television and radio constituted approximately 14.7% and 12.9%,
respectively of the Company's total revenues.
IN-STORE MARKETING
In-store marketing includes advertising displays, coupons, promotions and
product demonstrations provided within the store. Economic trends support the
continued growth of in-store marketing because this medium is inexpensive in
comparison to other marketing alternatives such as television, radio and
traditional print advertisements. In-store marketing products and services allow
advertisers to communicate with consumers at or near the point-of-purchase
before, or as, purchasing decisions are made. In addition, changing shopping
patterns have led to shorter supermarket visits, usually without shopping lists,
and declining brand loyalty, thus increasing the potential of in-store marketing
to influence consumer purchasing decisions. Industry sources estimate that a
significant percentage of brand purchase decisions are made in the supermarket.
PRODUCTS AND SERVICES. Actmedia offers advertisers a broad assortment of
in-store advertising and promotional products, which are highly effective in
increasing consumer awareness and purchases of targeted products. Advertising
products include print displays on shopping carts, aisle directories and
shelves, and audio advertising played throughout the store. Promotional products
consist of customized in-store demonstrations and merchandising, as well as
coupon and sampling programs. Actmedia can provide on-line reporting to
customers concerning the sales impact of its in-store programs. Certain of these
products and services are described below:
INSTANT COUPON MACHINE. The ICM, which was developed by Actmedia and
introduced in 1992, is an electronic dispenser of coupons that is mounted on
shelf channels under or near featured products. Through independent market
research sponsored by the Company, the ICM was shown to increase brand
switching substantially and to encourage first-time purchases of featured
products. In market testing, coupons featured in Actmedia's ICM achieved an
average redemption rate of 17%, versus reported redemption rates of
approximately 2% for coupons in free-standing inserts, approximately 4% for
coupons sent to consumers in direct mailings and approximately 1% for run of
press coupons. The ICM generated approximately $82 million of revenues in
1994, as compared to approximately $63 million in 1993.
ACTNOW. Actmedia's Actnow program provides cooperative in-store coupon
and sampling programs for groups of advertisers, generally five times per
year. Under these programs, Actmedia's representatives distribute coupons,
samples and premiums inside the store entrance. Up to 16.5 million co-op
coupon booklets and up to 16.5 million solo coupons and samples are
distributed nationwide directly to shopping customers per event. In
addition, product awareness is reinforced through the placement of featured
products on a free-standing Actnow display.
IMPACT. Impact is the nation's leading in-store supermarket
demonstration program, offering advertisers complete customized events, such
as tastings, premiums, samplings and demonstrations. All demonstrations are
monitored every day by full-time and part-time supervisors at an average
ratio of one supervisor to 15 demonstrators. Impact's regular part-time
staff of demonstrators, who implement the programs, maintain a consistent
professional appearance (with matching aprons and materials). Special
display units are utilized in the programs and programs are sold on a
store-day basis. Events are generally conducted at the front of the store
but can be located elsewhere.
6
<PAGE>
CARTS. Actmedia's 8" by 10", four-color advertisements, mounted in
plastic frames on the inside and outside of shopping carts, offer
advertisers continuous storewide category-exclusive advertising delivery of
a print advertisement.
AISLEVISION. AisleVision features 28" by 18" four-color advertisement
posters inserted in stores' overhead aisle directory signs. An enhancement
of this product, AisleAction, allows the manufacturer to include motion on
the directory sign, enhancing shopper awareness of the sign.
SHELFTALK/SHELFTAKE-ONE. ShelfTalk features advertisements placed in
plastic frames mounted on supermarket or drug store shelves near its
featured product. ShelfTake-One includes rebate offers or recipe ideas which
consumers may remove from the plastic frame at the site of the featured
product.
ACTRADIO. Actradio, formerly POP (Point of Purchase) Radio, is the
nation's largest advertiser-supported, in-store radio network. Actradio
delivers its in-store audio advertising in conjunction with music
entertainment services provided by leading business music providers.
Actradio sells advertising time to manufacturers in units of 15 second, 20
second, and 30 second commercials each hour.
SALES MERCHANDISING. Through its Powerforce division, Actmedia conducts
in-store merchandising and promotional activities such as shelf restockings,
special retailer events, point of purchase installations and other sales
merchandising tasks previously performed by full-time sales forces of
consumer packaged goods manufacturers.
In September 1995, Actmedia introduced ACTPROMOTE, an electronic "paperless"
couponing network which supports price discounts distributed at the checkout
scanner with on-shelf advertising and in-store audio promotion. National rollout
of this network is expected during 1996.
IN-STORE NETWORK. Actmedia's in-store network delivers some or all of its
products and services in over 24,000 supermarkets, 13,000 drug stores and 2,400
mass merchandiser stores across the country, a network substantially larger than
that of any other in-store marketing company in the United States. By
contracting to purchase the Company's in-store advertising and promotional
products, advertisers gain access to up to approximately 200 of the nation's 214
ADIs covering over 70% of the households in the United States. Through the
Powerforce division, Actmedia also delivers sales merchandising services to toy,
hardware, computer retail, office products and department stores.
Actmedia currently has contracts with approximately 300 store chains, which
contracts generally grant it the exclusive right to provide its customers with
those in-store advertising services which are contractually specified. The
contracts are of various durations, generally extending from three to five years
and provide for a revenue-sharing arrangement with the stores. Actmedia's store
contract renewals are staggered and many of its relationships have been
maintained for almost two decades.
Actmedia's advertising and promotional programs are executed through one of
the nation's largest independent in-store distribution and service
organizations, although certain chains require the Company to utilize their own
employees. Actmedia believes the training, supervision and size of its field
service staff (approximately 300 full-time managers and up to approximately
23,800 available part-time employees) provide it with a significant competitive
advantage as its competitors generally do not have a comparable field service
staff.
7
<PAGE>
CUSTOMER BASE. Actmedia's customer base includes approximately 250
companies and 700 brands. This customer base includes the 25 largest advertisers
of consumer packaged goods. In 1994, the Company's largest customers included
the following:
<TABLE>
<S> <C>
Andrew Jergens Kraft Foods
Chesebrough-Pond's Lever Brothers
Coca-Cola McNeil
General Mills Procter & Gamble
Heinz Quaker Oats
Hunt-Wesson Ralston Purina
James River RJR Nabisco
Kelloggs
</TABLE>
INTERNATIONAL OPERATIONS. Actmedia's strategy includes the establishment of
a significant business presence outside of the United States. The majority of
the Company's advertisers are large, multinational companies for whom the use of
in-store marketing products in overseas markets is expected to be a logical
extension of their advertising and promotional budgets. The Company's
international operations are conducted principally in Canada, Australia, New
Zealand and the Netherlands. International sales in 1994 accounted for $23.2
million (approximately 10.0%) of the in-store revenues.
TELEVISION
The following table sets forth selected information relating to the
television stations owned by Heritage (excluding KEVN-TV, the Company's Sioux
Falls, South Dakota NBC affiliate which is scheduled to be sold during December
1995):
<TABLE>
<CAPTION>
STATION
CHANNEL NETWORK TV HOMES IN DMA MARKET OTHER COMMERCIAL MARKET
STATION AND LOCATION NUMBER AFFILIATION DMA (1) RANK (1) STATIONS IN DMA SHARE (2)
- ------------------------------ ------------- ----------- ------------- ----------- ----------------- -------------
<S> <C> <C> <C> <C> <C> <C>
KOKH-TV 25 FOX 572,300 43 4 8
(UHF)
Oklahoma City, OK
WCHS-TV 8 ABC 473,200 56 3 15
(VHF)
Charleston/
Huntington, WV
WEAR-TV 3 ABC 422,340 62 4 19
(VHF)
Mobile, AL/
Pensacola, FL
WPTZ-TV 5 NBC 282,740(4) 92(4) 2 13
(VHF)
Burlington, VT/
Plattsburgh, NY
WNNE-TV 31 NBC 282,740(4) 92(4) 3 4
(UHF) (5)
Hartford, VT/
Hanover, NH
<CAPTION>
STATION RANK IN
STATION AND LOCATION MARKET (3)
- ------------------------------ -----------------
<S> <C>
KOKH-TV 4
(UHF)
Oklahoma City, OK
WCHS-TV 2
(VHF)
Charleston/
Huntington, WV
WEAR-TV 2
(VHF)
Mobile, AL/
Pensacola, FL
WPTZ-TV 2
(VHF)
Burlington, VT/
Plattsburgh, NY
WNNE-TV 4
(UHF) (5)
Hartford, VT/
Hanover, NH
</TABLE>
- ------------------------
(1) Source: Nielsen Television Designated Market Area ("DMA") rankings 1994-5.
(2) "Sign on-sign off" market shares as reported in the November 1994 Nielsen
ratings.
8
<PAGE>
(3) Rankings based on relative "sign on-sign off" market shares in the November
1994 ratings of Nielsen.
(4) Does not reflect any homes in southern Quebec (including most of Montreal)
which received the WPTZ-TV signal off the air or by cable. WPTZ-TV's signal
is accessible to approximately 3.4 million people in the city of Montreal.
(5) Operated as a satellite of WPTZ-TV, but maintains some local programming and
sells advertising locally.
Heritage operates its television stations in accordance with a cost-benefit
strategy that stresses primarily revenue and cash flow generation and
secondarily audience share and ratings. The objective of this strategy is to
deliver acceptable profit margins while maintaining a balance between the large
programming investment usually required to maintain a number one ranking (with
its resultant adverse effect on profit margins), and the unfavorable impact on
revenues that results from lower audience ratings.
Components of the Company's operating strategy include management's emphasis
on obtaining local advertising revenues by market segmentation, which provides a
competitive advertising advantage, focusing on local news programming and
tightly controlling operating expenses. By emphasizing advertising sales from
local businesses, the Company's stations produce a higher percentage of local
business (approximately 63% local and 37% national) than the national average.
RADIO
The Company owns and operates five AM and 12 FM radio stations in seven of
the top 50 markets. The following table sets forth certain information regarding
Heritage's radio stations (excluding ratings information for stations acquired
during 1995):
<TABLE>
<CAPTION>
FM STATION FM STATION RANK
METRO RANK STATIONS IN FORMAT IN TARGET
LOCATION (1) CALL SIGN FORMAT MARKET RANK (2) AUDIENCE (3)
- --------------------------- ------------- --------------- ----------------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Seattle-Tacoma, WA 13 KRPM-AM Country 31
KRPM-FM Country 2 14
St. Louis, MO 17 WRTH-AM Standards 32
WIL-FM Country 1 4
KIHT-FM Rock Oldies 1 7
Portland, OR 24 KKSN-AM Standards 28
KKSN-FM Oldies 1 3
WXYQ-FM Rock Oldies (5) (5)
Cincinnati, OH 25 WOFX-FM Classic Rock 25 (4) (4)
Milwaukee, WI 26 WEMP-AM Oldies 26
Adult
WMYX-FM Contemporary 1 8
Adult
WEZW-FM Contemporary 3 12
Rochester, NY 44 WBBF-AM Standards 17
WBEE-FM Country 1 1
WKLX-FM Oldies 1 5
Kansas City, MO-KS 27 KCFX-FM Rock Oldies 25 1 1
KICY-FM Smooth Jazz (6) (6)
</TABLE>
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(1) Metropolitan areas as defined and ranked by Arbitron, Fall 1994.
(2) Heritage's FM station ranking against all radio stations in its market with
the same programming format, based on persons aged 25 to 54 listening during
the 6:00 a.m. to midnight time period. (Source: Fall 1994 Arbitron ratings)
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(3) The target ranking against all radio stations in the market, based on
listenership by adults aged 25 to 54 during the 6:00 a.m. to midnight time
period. (Source: Fall 1994 Arbitron ratings.)
(4) Station changed its call letters to WVAE-FM and launched a new smooth jazz
format in September 1995.
(5) Format was launched in July 1995.
(6) Format was launched in June 1995.
In September 1995, the Company entered into an agreement to purchase radio
stations WMYV-FM and WWST-FM, both serving the Knoxville, Tennessee market, for
an aggregate purchase price of $6.5 million. The acquisition is expected to
close in early 1996.
The Company's strategy is to identify and acquire under performing radio
stations or groups and effect management and operational changes to increase
their profitability. Implementation of Heritage's strategy typically involves
the following four-step process: (1) instituting operational improvements,
usually including a change in management personnel and additional capital
investments when appropriate; (2) creating increases in audience ratings through
programming and promotional changes; (3) improving revenues as a result of the
turnaround process; and (4) increasing EBITDA. Heritage radio stations strive to
be top rated in their programming formats, and universally program a mass appeal
music format directed at a target audience of 25 to 54 year olds. Presently,
seven of the Company's 12 FM stations are format leaders in their markets.
The FCC limits radio ownership both in the number of stations commonly
owned, operated or controlled in any one market, and in total. In late 1992, the
FCC relaxed its rules to increase the number of AM or FM stations one entity can
own in one market, if certain requirements are met. This new combination is
commonly known as a duopoly. The Company has created duopoly ownership in five
of its seven radio markets.
Each of Heritage's FM facilities is of the highest class of service
permitted by the FCC (B or C) with comprehensive signal coverage of its markets.
The AM stations operate as full-time facilities on regional or clear channels.
DESCRIPTION OF SECURITIES
The following sets forth certain general terms and provisions of the
Indenture under which the Securities may be issued. The particular terms of any
such securities will be set forth in the Prospectus Supplement relating thereto.
GENERAL
The Securities will be issued under the Indenture (the "Indenture") between
the Company and The Bank of New York, as Trustee (the "Trustee").
The statements under this caption relating to the Securities and the
Indenture are summaries and do not purport to be complete, and where reference
is made to particular provisions of the Indenture, such provisions, including
the definition of certain terms, are qualified in their entireties by reference
to all of the provisions of the Indenture. Capitalized terms not otherwise
defined below or elsewhere in this Prospectus have the meanings given to them in
the Indenture. A copy of the Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
The Indenture does not limit the aggregate principal amount of Securities
that may be issued by the Company thereunder and provides that Securities may be
issued from time to time in a series.
The Securities will be unsecured obligations of the Company and subordinate
in payment to certain other debt obligations of the Company, as described below
under "Subordination."
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Substantially all of the operations of the Company are and will be conducted
through its subsidiaries, and therefore the Company is dependent on the cash
flow of its subsidiaries to meet the Company's obligations, including its
obligations under the Securities. See "Risk Factors -- Leverage; Restrictions
Imposed by Lenders."
Unless otherwise specified in the applicable Prospectus Supplement,
Securities will be issued in denominations of $1,000 or any integral multiples
of $1,000.
The applicable Prospectus Supplement will describe the following terms of
the Securities of any series: (1) the title; (2) any limit on the aggregate
principal amount; (3) the date or dates on which the principal and premium is
payable or the method of determination thereof; (4) the interest rate or rates
or the method of calculating such rate or rates, the date or dates from which
such interest will accrue and on which such interest will be payable, any right
of the Company to defer such payment, and the record dates for the determination
of holders to whom interest is payable on any such interest payment dates; (5)
the place or places where the principal, premium, if any, and any interest will
be payable, and where transfers or exchanges may be registered; (6) any periods
within which, prices at which, and any terms and conditions upon which, the
Securities of the series may be redeemed at the option of the Company; (7) any
obligation of the Company to redeem or purchase the 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 any periods within
which, the prices at which and other terms and conditions upon which, the
Securities of the series will be so redeemed or purchased pursuant to any such
obligation; (8) any restrictions on the registration, transfer or exchange of
the Securities of the series; (9) any addition to, or modification of, or
deletion from, any Events of Default or covenants provided for with respect to
the Securities of the series; (10) if the amount of principal of, or any premium
or interest on, any of the Securities of the series 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; (11) any provisions granting special
rights to the holders of Securities of the series upon the occurrence of such
events as may be specified; (12) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series which will be
payable upon declaration of the acceleration thereof; (13) the applicability, if
any, of the defeasance or covenant defeasance provisions of the Indenture to the
Securities of the series; (13) any circumstances under which the Company will
pay additional amounts on the Securities of the series held by non-U.S. persons
in respect of taxes, assessments or similar charges; (14) whether the Securities
of the series 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
Depositary for such global security or securities; (15) subject to the
subordination provisions of the Indenture, the relative degree to which the
Securities of the series shall be senior to or be subordinated to other
Indebtedness of the Company; (16) if the Securities of the series may be issued
or delivered or any installment of principal or interest is payable only upon
the satisfaction of other conditions in addition to those specified in the
Indenture, the form and terms of such conditions; (17) the identity of any
Registrar or Paying Agent if other than the Trustee, for the Securities of the
series; and (18) any other terms and provisions of the Securities of the series
which are not inconsistent with the applicable Indenture.
The 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 Securities will be described in
the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement,
principal of and premium, if any, and interest on, each Security will be
payable, and such Securities may be presented for registration of transfer or
exchange, at the office or agency of the Company maintained for such purpose. At
the option of the Company, payment of cash interest on any Security may be made
by check mailed to
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registered Holders thereof at the addresses set forth on the registry books (the
"Register") maintained by the Trustee, which will initially act as registrar
(the "Registrar"). Unless otherwise indicated in the applicable Prospectus
Supplement, scheduled interest payments on any Security will be made to the
person in whose name such Security is registered at the close of business on the
Regular Record Date for such interest.
No service charge will be made for any exchange or registration of transfer
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. Unless
otherwise specified in the applicable Prospectus Supplement or otherwise
designated by the Company, the Company's office or agency will be the Corporate
Trust Office of the Trustee.
GLOBAL SECURITIES
The 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 depositary
(the "Depositary") or a nominee for the Depositary identified in the applicable
Prospectus Supplement, will be deposited with such Depositary or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof. Unless and until it is exchanged in whole or
in part for Securities in definitive certificated form as described hereinafter,
a Registered Global Security may not be transferred or exchanged except as a
whole by the Depositary for such Registered Global Security 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 such
Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
The specific terms of the depository arrangement with respect to any portion
of a series of 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 Depositary for such
Registered Global Security, the Depositary will credit on its book-entry
registration and transfer system the respective principal amounts of the
Securities represented by such Registered Global Security to the accounts of
institutions ("Participants") that have accounts with the Depositary. The
accounts to be credited will be designated by the underwriters or agents
engaging in the distribution of such Securities or by the Company, if such
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
Depositary 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 Depositary for a Registered Global Security or its nominee,
is the owner of such Registered Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Security represented by such Registered Global Security for all purposes under
the Indenture. Accordingly, each person owning a beneficial interest in such
Registered Global Security must rely on the procedures of the Depositary 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 Depositary
would authorize the Participants holding the
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relevant beneficial interests to give or take such instruction or action, and
such Participants would authorize beneficial owners owning through 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 applicable Prospectus Supplement, payments
with respect to principal of, and, premium, if any, and interest, if any, on,
the Securities represented by a Registered Global Security registered in the
name of the Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. The Company expects that the Depositary for any Securities represented
by a Registered Global Security, upon receipt of any payment 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 Depositary. 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 of the
Participants, and will be the responsibility of such Participants. 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 interests in any Registered Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial interests.
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any Security represented by a Registered Global Security is at
any time unwilling or unable to continue as Depositary of such Registered Global
Security and a successor depository is not appointed by the Company within 90
days, or if an Event of Default is continuing upon request from the Depositary,
the Company will issue 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 Securities of a series represented
by one or more Registered Global Securities and, in such event, will issue
Securities of such series in certificated form in exchange for all of the
Registered Global Securities representing such series of Securities.
OPTIONAL REDEMPTION
The terms, if any, of the optional redemption of the Securities by the
Company will be set forth in detail in the applicable Prospectus Supplement.
Notice of redemption will be sent, by first-class mail, at least 30 days and not
more than 60 days prior to the date fixed for redemption to each Holder of
Securities to be redeemed at the last address for such Holder then shown on the
Register. If less than all of the Securities are to be redeemed, the Trustee
shall select, in such manner as in its sole discretion it shall deem appropriate
and fair, the particular Securities to be redeemed or any portion thereof that
is an integral multiple of $1,000. Any notice that relates to a Security to be
redeemed only in part shall state the portion of the principal amount to be
redeemed and that on or after the redemption date, upon surrender of the
Security, a new Security will be issued in a principal amount equal to the
unredeemed portion thereof. On and after the redemption date (unless the Company
shall default in the payment of such Security at the redemption price, together
with accrued interest to the redemption date), interest will cease to accrue on
the Securities or part thereof called for redemption.
SUBORDINATION TO SENIOR INDEBTEDNESS
The Securities are expressly subordinate and subject in right of payment to
the prior payment of all Senior Indebtedness, whether outstanding at the date of
the issuance of the Securities or thereafter incurred. "Senior Indebtedness"
means (i) all principal of or interest on or in connection with Indebtedness
(whether outstanding at the date of the issuance of the Securities or thereafter
incurred), (ii) all charges, fees, expenses (including reasonable attorneys'
fees and expenses) and other amounts owing to holders of Indebtedness described
in clause (i) above in connection with such Indebtedness, and (iii) all
renewals, extensions, refundings and replacements of such Indebtedness, unless
in each case, the instrument or document evidencing such Indebtedness expressly
provides
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that such Indebtedness (a) is expressly subordinate to other Indebtedness of the
Company or (b) is not superior in right of payment to the Securities; PROVIDED,
HOWEVER, that Senior Indebtedness shall not include the Securities or the 1992
Notes, or any renewals, extensions or refundings thereof.
In addition, as a result of the Company's holding company structure, the
creditors of the Company (including the holders of the Securities), effectively
rank junior to all creditors of the Company's subsidiaries, including trade
creditors. At September 30, 1995, the aggregate outstanding principal amount of
Senior Indebtedness and liabilities of the Company's subsidiaries on a
consolidated basis was approximately $292.1 million. Subject to certain
restrictions contained in the Indenture, the 1992 Indenture, the Credit
Agreement and the HMSI Indenture, the Company and its subsidiaries are permitted
to incur additional Senior Indebtedness.
REPORTS TO HOLDERS
At all times from and after the effective date of the Indenture, whether or
not the Company is then required by the Exchange Act to file reports with the
Commission, the Company shall, to the extent required or permitted, file with
the Commission all such reports and other information as would be required to be
filed with the Commission by the Exchange Act. The Company shall supply the
Trustee and each Holder, or shall supply to the Trustee for forwarding to each
Holder, without cost to such Holder, copies of such reports or other
information. The Company also shall comply with the provisions of Trust
Indenture Act Section 314(a).
EVENTS OF DEFAULT
The following will be Events of Default with respect to the Securities of
any series under the Indenture: (i) failure to pay any interest on any Security
of that series when due, continued for 30 days; (ii) failure to pay principal of
(or premium, if any, on) any Security of that series when due; (iii) failure to
perform or a breach of the obligations of the Company with respect to Mergers,
Consolidations, Sales and Purchases of Assets as set forth in the Indenture;
(iv) failure to perform any other covenant or warranty of the Company in the
Indenture, continued for 60 days after written notice as provided in the
Indenture; (v) failure to pay when due, or acceleration of, the principal of any
Indebtedness of the Company or any Subsidiary of the Company in an aggregate
principal amount in excess of $1,500,000; (vi) the rendering of a final judgment
or judgments (not subject to appeal) against the Company or any of its
Subsidiaries in an aggregate principal amount in excess of $2,000,000 which
remains unstayed, in effect and unpaid for a period of 60 consecutive days
thereafter, and (vii) certain events in bankruptcy, insolvency or reorganization
affecting the Company or any Subsidiary of the Company.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity. Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee in respect of such Securities.
If an Event of Default shall occur and be continuing, either the Trustee or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of such series may accelerate the maturity of all Securities of such
series; provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of Outstanding Securities of such series may, under certain
circumstances with respect to the Securities of any series, rescind and annul
such acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
For information as to waiver of defaults, see "Modification and Waiver."
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No Holder of any Security of any series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of such series and
unless the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a Holder of a Security for enforcement of payment of the principal
of (and premium, if any) or interest on such Security on or after the respective
due dates expressed in such Security.
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
DISCHARGE AND DEFEASANCE
The Indenture provides that the Indenture shall cease to be of further
effect (except as to registration of transfers and exchanges of Securities and
certain other matters) with respect to the Securities of any series when all
such Securities have or will within one year at their Stated Maturity or
Redemption Date become due and payable and the Company has paid or deposited in
trust with the Trustee a sufficient amount of funds to pay all amounts due with
respect to such Securities.
Additionally, with respect to the Securities of any series as to which the
applicable Prospectus Supplement indicates the applicability of either or both
of the defeasance and covenant defeasance provisions described hereinafter, the
Company at its option may be discharged (i) from all Indenture obligations
(except as to registration of transfers and exchanges of Securities and certain
other matters) ("defeasance") or (ii) from certain of its obligations under
various covenants ("covenant defeasance") and its failure to observe such
obligations will not constitute an Event of Default, upon irrevocable deposit
with the Trustee, in trust, of money and/or government obligations which will
provide money in an amount sufficient in the opinion of a nationally recognized
accounting firm to pay the principal of and premium, if any, and each
installment of interest, if any, on the Outstanding Securities of such series.
With respect to clause (ii), the obligations under the Indenture other than with
respect to such covenants and the Events of Default other than the Event of
Default relating to such covenants above shall remain in full force and effect.
Such additional conditions include, among other things (1) with respect to
clause (i), the Company has received from, or there has been published by, the
Internal Revenue Service of a ruling or there has been a change in law, which in
the opinion of counsel to the Company provides that Holders of the Securities of
such series will not recognize gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred;
or, with respect to clause (ii), the Company has delivered to the Trustee an
opinion of its counsel to the effect that the Holders of the Securities of such
series will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; (2) no Event of
Default or event that, with the passing of time or the giving of notice, or
both, shall constitute an Event of Default shall have occurred and be continuing
and no bankruptcy Event of Default shall have occurred and be continuing on the
121st day after the date of such deposit; and (3) the Company has delivered to
the Trustee an opinion of its counsel to the effect that such deposit shall not
cause the Trustee or the trust so created to be subject to the Investment
Company Act of 1940.
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MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
Outstanding Security of such series affected thereby, (i) change the Stated
Maturity of the principal of, or any installment of interest on, any Security of
such series, (ii) reduce the principal amount of (or the premium) or interest
on, any Security of such series, (iii) change the place of payment of principal
of (or premium) or interest on, any Security of such series, (iv) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Security of such series, (v) reduce the above-stated percentage of
Outstanding Securities of such series necessary to modify or amend the
Indenture, (vi) reduce the percentage of aggregate principal amount of
Outstanding Securities of such series necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults or (vii)
modify any provisions of the Indenture relating to the modification and
amendment of the Indenture or the waiver of past defaults or covenants, except
as otherwise specified.
The Indenture also permits certain modifications and amendments of such
Indenture to be made by the Company and the Trustee, without the consent of the
Holders for any of the following purposes: (i) to evidence the succession of
another person to the Company and the assumption by any such successor to the
covenants of the Company, (ii) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power conferred upon the
Company by the Indenture, (iii) to comply with any requirements of the
Commission to maintain the qualification of the Indenture under the Trust
Indenture Act, or (iv) to cure any ambiguity, to correct or supplement any
provision in the Indenture which may be inconsistent with any other provision of
the Indenture which does not adversely affect the interests of the Holders in
any material respect. The Indenture also provides that a supplemental indenture
which changes or eliminates any covenant or other provision of such Indenture
which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modified the rights of the Holders of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under such Indenture of the Holders of Securities of
any other series.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any series may waive compliance by the Company with certain
restrictive covenants contained in the Indenture. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series may
waive any past default under the Indenture, except a default in the payment of
principal, premium, if any, or interest.
GOVERNING LAW
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in four ways: (i)
through agents, (ii) through underwriters, (iii) through dealers and (iv)
directly to certain purchasers (through a specific bidding or auction process or
otherwise). The distribution of Securities may be effected from
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time to time in one or more transactions at a fixed price or prices, which may
be changed, or at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Securities in respect of which this Prospectus is delivered, will
be named, and any commissions payable by the Company to such agent will be set
forth, in a Prospectus Supplement. Unless otherwise indicated in a Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment. Agents may be entitled under agreements which may be entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act.
If any underwriters are utilized in the sale of the Securities, the Company
will enter into an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the transaction,
including compensation of the underwriters and dealers, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
the Securities in respect of which this Prospectus is delivered to the public.
The underwriters may be entitled, under the relevant underwriting agreement, to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and to reimbursement by the Company for
certain expenses.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at any time of resale. Dealers
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and to reimbursement by the
Company for certain expenses.
Offers to purchase the Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
The Securities may also be offered and sold, if so indicated in the
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 Prospectus Supplement. Remarketing firms may be deemed
to be underwriters in connection with the Securities remarketed thereby.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Securities from the Company at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to only those conditions set forth in the Prospectus Supplement and the
Prospectus Supplement will set forth the commission payable for solicitation of
such efforts.
Certain of the underwriters, agents or dealers and their associates may be
customers or engage in transactions with and perform services for the Company in
the ordinary course of business.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for the
Company by Crouch & Hallett, L.L.P., Dallas, Texas, and will be passed upon for
the Underwriters by Davis Polk & Wardwell, New York, New York. Crouch & Hallett,
L.L.P. and Davis Polk & Wardwell may rely as to all matters of Iowa law upon the
opinion of Wayne Kern, Esq., Senior Vice President and Secretary of the Company.
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EXPERTS
The consolidated financial statements and schedules of Heritage Media
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 in reliance upon 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.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at its offices at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Commission's Regional Offices at Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material can
be obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition,
such material may also be inspected and copied at the offices of the American
Stock Exchange, 86 Trinity Place, New York, New York 10006-1881.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby made
to the Registration Statement.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be paid by the Company in connection with this
offering:
<TABLE>
<CAPTION>
ITEM AMOUNT
- ------------------------------------------------------------------------------------------- -----------
<S> <C>
SEC registration fee....................................................................... $ 103,449
State securities filing fees and expenses..................................................
Printing and engraving expenses............................................................
Legal fees and expenses....................................................................
Accounting fees and expenses...............................................................
Transfer agent fees and expenses...........................................................
Miscellaneous..............................................................................
-----------
Total.................................................................................... $
-----------
-----------
</TABLE>
All amounts estimated except for SEC registration fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 851 and 856 of the Iowa Business Corporation Act provide that a
corporation has the power to indemnify its directors and officers against
liabilities and expenses incurred by reason of such person serving in the
capacity of director or officer, if such person has acted in good faith and in a
manner reasonably believed by the individual to be in or not opposed to the best
interests of the corporation, and in any criminal proceeding if such person had
no reasonable cause to believe the individual's conduct was unlawful. The
foregoing indemnity provisions notwithstanding, in the case of actions brought
by or in the right of the corporation, no indemnification shall be made to such
director or officer with respect to any matter as to which such individual has
been adjudged to be liable to the corporation unless, and only to the extent
that, the adjudicating court determines that indemnification is proper under the
circumstances.
Article XIII, Section 1 of the registrant's Amended and Restated Articles of
Incorporation and Article III, Section 13, Subsection 1 of the registrant's
By-laws provide that no director shall be liable to the registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director,
provided that the liability of a director is not eliminated or limited (i) for
any breach of the director's duty of loyalty to the registrant or its
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) any transaction from
which such director derived an improper personal benefit, and (iv) under Section
496A.44 of the Iowa Business Corporation Act.
Article XIII, Section 2 of the registrant's Amended and Restated Articles of
Incorporation and Article III, Section 13, Subsection 2 of the registrant's
By-laws provide, in general, that the registrant shall indemnify its directors
and officers under the circumstances defined in Sections 851 and 856 of the Iowa
Business Corporation Act.
ITEM 16. EXHIBITS.
<TABLE>
<C> <C> <S>
1(a) -- Form of Underwriting Agreement.(1)
4(a) -- Form of Indenture dated as of , 1995 of the Company to
The Bank of New York, as Trustee(1)
4(b) -- Indenture dated as of June 15, 1992 of Heritage Media Services, Inc.
("HMSI") to Bankers Trust Company, as trustee(2)
4(c) -- Indenture dated as of October 1, 1992 of the registrant to Bank of
Montreal Trust Company, as trustee(3)
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <C> <S>
4(d) -- Form of Pledge Agreement among the Company, certain Subsidiaries of
the Company, Bankers Trust Company and Citibank N.A.(2)
4(e) -- Registrant's Series A Junior Participating Preferred Plan(4)
5 -- Opinion of Crouch & Hallett, L.L.P.(1)
10(a) -- Form of Credit Agreement among HMSI, the banks named therein,
Citibank, N.A., as agent and NationsBank of Texas, N.A., as
co-agent(2)
10(b) -- Registrant's Amended and Restated Stock Option Plan(5)
10(c) -- Registrant's Employee Stock Ownership Plan, as amended(6)
12(a) -- Statement Re: Computation of Consolidated Earnings to Fixed
Charges(1)
23(a) -- Consent of KPMG Peat Marwick LLP(1)
23(b) -- Consent of Crouch & Hallett, L.L.P. (included in opinion filed as
Exhibit 5)
24 -- Power of Attorney (included on page II-4)
25(a) -- Statement of Eligibility of Trustee under the Trust Indenture Act of
1939 on Form T-1(1)
</TABLE>
- ------------------------
(1) Filed herewith.
(2) Filed as an Exhibit to the registrant's Registration Statement No. 33-47953
on Form S-2 and incorporated herein by reference.
(3) Filed as an Exhibit to the registrant's Registration Statement No. 33-52062
on Form S-2 and incorporated herein by reference.
(4) Filed as an Exhibit to the registrant's Form 8-K filed August 29, 1994.
(5) Filed as an Exhibit to the registrant's Form 10-K for the year ended
December 31, 1993 and incorporated herein by reference.
(6) Filed as an Exhibit to Amendment No. 2 to the registrant's Registration
Statement on Form S-8 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) RULE 415 OFFERING
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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.
II-2
<PAGE>
(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 registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) INDEMNIFICATION FOR LIABILITY UNDER THE SECURITIES ACT OF 1933
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth or described in Item 15 of the
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) RULE 430A
The undersigned registrant hereby undertakes that:
(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 Rule 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 of 1933 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.
(e) QUALIFICATION OF TRUST INDENTURES UNDER THE TRUST INDENTURE ACT OF 1939
The undersigned registrant hereby undertakes to file an application for the
purposes of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ("Act") in accordance with rules
and regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, Texas on November 3, 1995.
HERITAGE MEDIA CORPORATION
By: /s/ DAVID N. WALTHALL
-----------------------------------
David N. Walthall
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
Each of the undersigned hereby appoints David N. Walthall and Douglas N.
Woodrum, and each of them (with full power to act alone), as attorneys and
agents for the undersigned, with full power of substitution for and in the name,
place and stead of the undersigned, to sign and file with the Securities and
Exchange Commission under the Securities Act of 1933 and any and all amendments
(including post-effective amendments) and exhibits to this Registration
Statement and any and all applications, instruments and other documents to be
filed with the Securities and Exchange Commission pertaining to the registration
of the securities covered hereby, with full power and authority to do and
perform any and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ JAMES M. HOAK, JR.
- ------------------------------------------- Chairman of the Board and November 3, 1995
James M. Hoak, Jr. Director
/s/ DAVID N. WALTHALL President and Director
- ------------------------------------------- (Principal Executive November 3, 1995
David N. Walthall Officer)
/s/ JAMES P. LEHR Vice President and
- ------------------------------------------- Controller (Principal November 3, 1995
James P. Lehr Accounting Officer)
/s/ DOUGLAS N. WOODRUM Vice President -- Finance
- ------------------------------------------- (Principal Financial November 3, 1995
Douglas N. Woodrum Officer)
- ------------------------------------------- Director November , 1995
James S. Cownie
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S> <C>
/s/ JOSEPH M. GRANT
- ------------------------------------------- Director November 3, 1995
Joseph M. Grant
/s/ CLARK A. JOHNSON
- ------------------------------------------- Director November 3, 1995
Clark A. Johnson
- ------------------------------------------- Director November , 1995
Alan R. Kahn
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED PAGE
-------------
<C> <C> <S> <C>
1(a) -- Form of Underwriting Agreement.(1)
4(a) -- Form of Indenture dated as of , 1995 of the Company to The Bank of New York,
as Trustee(1)
4(b) -- Indenture dated as of June 15, 1992 of Heritage Media Services, Inc. ("HMSI") to Bankers
Trust Company, as trustee(2)
4(c) -- Indenture dated as of October 1, 1992 of the registrant to Bank of Montreal Trust
Company, as trustee(3)
4(d) -- Form of Pledge Agreement among the Company, certain Subsidiaries of the Company, Bankers
Trust Company and Citibank N.A.(2)
4(e) -- Registrant's Series A Junior Participating Preferred Plan(4)
5 -- Opinion of Crouch & Hallett, L.L.P.(1)
10(a) -- Form of Credit Agreement among HMSI, the banks named therein, Citibank, N.A., as agent
and NationsBank of Texas, N.A., as co-agent(2)
10(b) -- Registrant's Amended and Restated Stock Option Plan(5)
10(c) -- Registrant's Employee Stock Ownership Plan, as amended(6)
12(a) -- Statement Re: Computation of Consolidated Earnings to Fixed Charges(1)
23(a) -- Consent of KPMG Peat Marwick LLP(1)
23(b) -- Consent of Crouch & Hallett, L.L.P. (included in opinion filed as Exhibit 5)
24 -- Power of Attorney (included on page II-4)
25(a) -- Statement of Eligibility of Trustee under the Trust Indenture Act of 1939 on Form T-1(1)
</TABLE>
- ------------------------
(1) Filed herewith.
(2) Filed as an Exhibit to the registrant's Registration Statement No. 33-47953
on Form S-2 and incorporated herein by reference.
(3) Filed as an Exhibit to the registrant's Registration Statement No. 33-52062
on Form S-2 and incorporated herein by reference.
(4) Filed as an Exhibit to the registrant's Form 8-K filed August 29, 1994.
(5) Filed as an Exhibit to the registrant's Form 10-K for the year ended
December 31, 1993 and incorporated herein by reference.
(6) Filed as an Exhibit to Amendment No. 2 to the registrant's Registration
Statement on Form S-8 and incorporated herein by reference.
<PAGE>
Exhibit 1(a)
HERITAGE MEDIA CORPORATION
STANDARD PROVISIONS
(SUBORDINATED DEBT SECURITIES)
UNDERWRITING AGREEMENT
________________, 199_
From time to time, Heritage Media Corporation, an Iowa
corporation (the "Company"), may enter into one or more
underwritten pricing agreements that provide for the sale of
designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by
reference in any such underwritten pricing agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company
has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
a prospectus, in accordance with the provisions of the Securities
Act of 1933, as amended and the rules and regulations of the
Commission thereunder (collectively called the "Securities Act")
relating to the Subordinated Debt Securities (the "Debt
Securities") and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act. The term "Registration Statement"
means the registration statement, including the exhibits
thereto, as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities
together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement,"
<PAGE>
"amendment" and "amend" as used herein shall include all
documents (collectively called the "Incorporated Documents")
deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by
the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The term "Contract Securities" means the Offered
Securities to be purchased pursuant to the delayed delivery
contracts substantially in the form of Schedule I hereto, with
such changes therein as the Company may approve (the "Delayed
Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
2. TERMS OF PUBLIC OFFERING. The Company is advised
by the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters'
Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the
Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided
in Section 6, payment for the Underwriters' Securities shall be
made by certified or official bank check or checks payable to the
order of the Company in New York Clearing House funds at the time
and place set forth in the Underwriting Agreement, upon delivery
to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in
writing not less than two full business days prior to the date of
delivery, with any transfer taxes payable in connection with the
transfer of the Underwriters' Securities to the Underwriters duly
paid.
4. AGREEMENTS OF THE COMPANY. The Company agrees with
each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed
copy of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, the
Incorporated Documents and any supplements and amendments
thereto or to the Registration Statement as the Manager may
reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered
Securities, to furnish to the Manager a copy of each such
proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
2
<PAGE>
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion
of counsel for the Underwriters the Prospectus is required
by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or
if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to
maintain such qualification for as long as the Manager shall
reasonably request.
(e) To mail and make generally available to the
Company's security holders and to the Manager as soon as
practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities, (other than
(i) the Offered Securities and (ii) commercial paper issued
in the ordinary course of business), without the prior
written consent of the Manager.
(g) To pay all costs, expenses, fees and taxes
incident to the performance of its obligations under this
Agreement, including: (i) the preparation, printing and
filing of the Registration Statement and the Prospectus and
all amendments and supplements thereto; (ii) the
preparation, issuance and delivery of the Offered
Securities; (iii) the fees and disbursements of the
Company's counsel and accountants
3
<PAGE>
and of the Trustee and its counsel; (iv) the qualification
of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and
in connection with the preparation of any Blue Sky or Legal
Investment Memoranda; (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of any
preliminary prospectus and the Prospectus and any amendments
or supplements thereto; (vi) the printing and delivery to
the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating
agencies for the rating, if any, of the Offered Securities;
(viii) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc. made in connection with the Offered
Securities; and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential
investors.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective;
no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) (i) Each Incorporated Document, if any, filed or
to be filed pursuant to the Exchange Act complied or will
comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and
the Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, except that the representations
and warranties set forth in this Section 5(b) do not apply
(A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or
(B) to that part of the
4
<PAGE>
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(d) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to
carry on its business as it is currently being conducted and
to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of
property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(e) The Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, in the case of the Underwriters'
Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of
the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of
the Company, in each case enforceable in accordance with
their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights
of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(f) This Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(g) The Indenture has been duly qualified under the
Trust Indenture Act and
5
<PAGE>
has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies
may be limited by equitable principles of general
applicability.
(i) The Offered Securities conform as to legal matters
to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a
party or by which it or any of its subsidiaries or their
respective property is bound.
(k) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement, the Indenture, the Delayed Delivery
Contracts and the Offered Securities will not require any
consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
securities or Blue Sky laws of the various states) and will
not conflict with or constitute a breach of any of the terms
or provisions of, or constitute a default under, the charter
or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any
of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the
Company, any of its subsidiaries or their respective
property.
(l) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or
6
<PAGE>
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required
to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(n) Neither the Company nor any of its subsidiaries
has violated (i) any foreign, federal, state or local law or
regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
(ii) any federal or state law relating to discrimination in
the hiring, promotion or pay of employees or any applicable
federal or state wages and hours laws or (iii) any
provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in
each case might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole.
(o) The Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business; the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit; and, except as described in the Prospectus
(exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), such permits
contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries.
(p) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects,
financial condition or results of operation of the Company
and its subsidiaries, taken as a whole, the Company and each
of its subsidiaries has
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<PAGE>
good and marketable title, free and clear of all liens, claims,
encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the
Registration Statement as being owned by it. All leases to
which the Company or any of its subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change
in the business, prospects, financial condition or results of
operation of the Company and its subsidiaries taken as a whole,
and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such
subsidiary.
(q) The Company and each of its subsidiaries maintains
reasonably adequate insurance.
(r) KPMG Peat Marwick LLP are independent public
accountants with respect to the Company as required by the
Act.
(s) The financial statements, together with related
schedules and notes included or incorporated into the
Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in
financial position of the Company and its subsidiaries on
the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have
been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in
the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and
records of the Company.
(t) The fair salable value of the assets of the
Company exceeds the amount that will be required to be paid
on or in respect of the existing debts and other liabilities
(including contingent liabilities) of the Company as they
mature; the assets of the Company do not constitute
unreasonably small capital to carry out its business as
conducted or as proposed to be conducted; the Company does
not intend to, and does not believe that the Company will,
incur debts beyond its ability to pay such debts as they
mature; upon the issuance of the Debt Securities, the fair
salable value of the assets of the Company and its
subsidiaries taken as a whole, will exceed the amount that
will be required to be paid on or in respect of the existing
debts and other liabilities (including contingent
liabilities) of the Company and its subsidiaries, taken
8
<PAGE>
as a whole, as they mature; the assets of the Company and
its subsidiaries do not, and upon the issuance of the Debt
Securities will not, constitute unreasonably small capital
for the Company and its subsidiaries to carry out their
respective businesses as now conducted as proposed to be
conducted including the capital needs of the Company and its
subsidiaries, and projected capital requirements of the
business conducted by the Company and each of its
subsidiaries, and projected capital requirements and capital
availability thereof; and the Company does not intend to,
and does not intend to permit any of its subsidiaries to,
incur debts beyond their respective ability to pay such
debts as they mature.
(u) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(v) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate
located in Cuba.
6. DELAYED DELIVERY CONTRACTS. If the Prospectus
provides for sales of Offered Securities pursuant to Delayed
Delivery Contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts may be entered into only with institutional
investors approved by the Company of the types set forth in the
Prospectus. On the Closing Date, the Company will pay to the
Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of
the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of
any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of
Offered Securities to be purchased by the several Underwriters
shall be reduced by the aggregate amount of Contract Securities;
such reduction shall be applied to the commitment of each
Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other
proportions and so advises the Company; provided, however, that
the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less
the aggregate amount of Contract Securities.
9
<PAGE>
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating
any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 7, such person (the
"indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both
10
<PAGE>
parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party
in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and
indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the
offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand
and of the Underwriters on the other hand in connection with
the statements or omissions that
11
<PAGE>
resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with
the offering of the Offered Securities shall be deemed to
be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before
deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amounts of
Offered Securities they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in
paragraph (d) of this Section 7. The amount paid or payable
by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 7 and
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<PAGE>
the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter
or the Company, its officers or directors or any person controlling
the Company and (iii) acceptance of and payment for any of
the Offered Securities.
8. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters are subject to the
satisfaction of the following conditions:
(a) All the representations and warranties of the
Company contained in this Agreement shall be true and
correct on the Closing Date with the same force and effect
as if made on and as of the Closing Date.
(b) At the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not
have been any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any
review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) Since the date of the latest balance sheet
included or incorporated by reference in the Registration
Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a
prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary
course of business, of the Company; since the date of the
latest balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus there shall
not have been any change, or any development involving a
prospective material adverse change, in the capital stock or
in the long-term debt of the Company from that set forth in
the Registration Statement and Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement); and the Company and its subsidiaries shall
have no liability or obligation, direct or contingent, which
is material to the Company and its subsidiaries, taken as a
whole, other than those
13
<PAGE>
reflected in the Registration Statement and the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(e) The Underwriters shall have received on the
Closing Date a certificate dated the Closing Date, signed by
an executive officer of the Company, confirming the matters
set forth in paragraphs (a), (b), (c) and (d) of this
Section 8. The officer signing and delivering such
certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(f) The Underwriters shall have received on the
Closing Date an opinion of Crouch & Hallett, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company and each of its subsidiaries
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate
power and authority required to carry on its business
as it is currently being conducted and to own, lease
and operate its properties;
(ii) the Company and each of its
subsidiaries is duly qualified and is in good standing
to do business in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the
extent that the failure to be so qualified or be in
good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) the Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting
Agreement, in the case of Underwriters' Securities, or
by institutional investors in accordance with the terms
of the Delayed Delivery Contracts, in the case of the
Contract Securities, will be entitled to the benefits
of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as (a)
the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of
general applicability;
(iv) this Agreement has been duly
authorized, executed and delivered
14
<PAGE>
by the Company and is a valid and binding agreement of
the Company enforceable in accordance with its terms
(except as rights to indemnity and contribution hereunder
may be limited by applicable law);
(v) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (A)
the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of
acceleration and the availability of equitable remedies
may be limited by equitable principles of general
applicability;
(vi) the Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company
and are valid and binding agreements of the Company,
enforceable in accordance with their respective terms
except as (A) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable
principles of general applicability;
(vii) the statements (A) in the Prospectus
under the captions "Description of Debt Securities,"
"Plan of Distribution" and "_______," (B) in the
Registration Statement under Item 15, (C) in "Item 3 -
Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the
Prospectus and (D) in "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-
Q, if any, filed since such annual report, in each case
insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and
proceedings and fairly summarize the matters referred
to therein;
(viii) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and
the Offered Securities will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other
governmental body (except as such may be required under
the securities or Blue Sky laws of the various states)
and will not conflict with or constitute a breach of
any of the terms or provisions of, or constitute a
default under, the charter or by-laws of the Company or
any of its subsidiaries or any agreement, indenture or
other instrument known to such counsel, after due
15
<PAGE>
inquiry, to which the Company or any of its
subsidiaries is a party or by which the Company or any
of its subsidiaries or their respective properties is
bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees
applicable to the Company or any of its subsidiaries or
their respective properties;
(ix) after due inquiry, such counsel does
not know of any legal or governmental proceedings
pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in
the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or
incorporated as required;
(x) the Company is not an "investment
company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment
Company Act of 1940, as amended; and
(xi) such counsel (A) is of the opinion that
each Incorporated Document, if any, filed pursuant to
the Exchange Act (except for financial statements and
schedules included therein as to which such counsel
need not express any opinion) complied when so filed as
to form in all material respects with the Exchange Act
and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe
that (except for financial statements and schedules as
to which such counsel need not express any belief and
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part
became effective, contained and, as of the date such
opinion is delivered, contains any untrue statement of
a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading, (C) is of the
opinion that the Registration Statement and Prospectus
(except for financial statements and schedules included
therein as to which such counsel need not express any
opinion) comply as to form in all material respects
with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no
reason to believe that (except for financial statements
and schedules as to which such counsel need not express
any belief) the Prospectus as of the date such opinion
is delivered contains any untrue statement of a
material fact or omits to state a
16
<PAGE>
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
With respect to the subparagraph (viii) of
paragraph (f) above, Crouch & Hallett may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and Incorporated Documents and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. The
opinion of Crouch & Hallett described in paragraph (f) above
shall be rendered to the Underwriters at the request of the
Company and shall so state therein. Crouch & Hallett may, as to
matters of Iowa law, rely on the opinion of Wayne Kern, Esq.,
General Counsel of the Company.
(g) The Underwriters shall have received on the
Closing Date an opinion of Wayne Kern, Esq., General Counsel
for the Company, dated the Closing Date, to the effect that:
(i) neither the Company nor any of its
subsidiaries is in violation of its respective charter
or by-laws and, to the best of such counsel's knowledge
after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of
the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party
or by which it or any of its subsidiaries or their
respective property is bound;
(ii) to the best of such counsel's
knowledge, after due inquiry, neither the Company nor
any of its subsidiaries has violated (A) any
Environmental Laws, (B) any federal or state law
relating to discrimination in the hiring, promotion or
pay of employees or any applicable federal or state
wages and hours laws or (C) any provisions of the
Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which in each
case might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as
a whole; and
(iii) the Company and each of its
subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory
authorities ("permits"), including, without limitation,
under any applicable
17
<PAGE>
Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its
business in the manner described in the Prospectus;
to the best of such counsel's knowledge, after due
inquiry, the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations
with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in
any other material impairment of the rights of the
holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus;
and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome
to the Company or any of its subsidiaries.
(h) The Underwriters shall have received on the
Closing Date an opinion of Akin, Gump, Strauss, Hauer &
Feld, L.L.P., special regulatory counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company and its subsidiaries have
all material licenses and authorizations from the
Federal Communications Commission (the "FCC") as are
necessary to own their radio and television broadcast
properties and to conduct their broadcasting business
in the manner described in the Prospectus and in the
Company's current annual report on Form 10K, and such
licenses and authorizations contain no materially
burdensome restrictions not adequately described in the
Company's current annual report on Form 10-K and the
Prospectus;
(ii) no authorization or approval of the FCC
is required in connection with the consummation of the
transactions contemplated by this Agreement or the
Prospectus;
(iii) the statements in the Prospectus under
the captions "Company - Television" and "- Radio" and
in the Company's current annual report on Form 10-K
under the captions "Broadcasting - Competition" and "-
Federal Regulation of Broadcasting" insofar as they
are, or relate to, statutes, regulations and
governmental proceedings or matters involving federal
communications laws and policies and the impact thereof
on the business in which the Company and its
subsidiaries operate, have been prepared or reviewed by
such counsel and are correct in all material respects
as relevant to the Company and are complete
descriptions in all material respects as relevant to
the Company and fairly represent the communications
laws and policies applicable to the Company and its
subsidiaries as disclosed in the Prospectus in
18
<PAGE>
all material respects as relevant to the Company; and
the descriptions in the Prospectus under the captions
"Company - Television" and "- Radio" and in the
Company's current annual report on Form 10-K under the
captions "Broadcasting - Competition" and "- Federal
Regulation of Broadcasting" of all radio and television
broadcast licenses and authorizations held by the
Company and its subsidiaries are accurate in all
material respects and fairly present the information
shown and required to be shown; and
(iv) to the best of such counsel's knowledge
and other than as set forth in the Prospectus, there
are no legal, governmental or other proceedings pending
involving communications laws and policies to which the
Company or any of its subsidiaries is a party or to
which the radio and television broadcast properties or
broadcast licenses of the Company or any of its
subsidiaries is subject; and, to the best of such
counsel's knowledge, no such proceedings are threatened
or contemplated by the FCC or other governmental
authorities or threatened by others.
(i) The Underwriters shall have received on the
Closing Date an opinion of Davis Polk & Wardwell, special
counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (iii),
(iv), (v), (vi), (vii) (but only as to the statements in the
Prospectus under "Description of Debt Securities" and "Plan
of Distribution") and clauses (B), (C) and (D) of
subparagraph (xii) of paragraph (f) above. With respect to
clauses (B), (C) and (D) of subparagraph (xii) of paragraph
(f) above, Davis Polk & Wardwell may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
Incorporated Documents) and review and discussion of the
contents thereof (including Incorporated Documents), but are
without independent check or verification, except as
specified. Davis Polk & Wardwell may, as to matters of Iowa
law, rely on the opinion of Wayne Kern, Esq., General
Counsel of the Company.
(j) The Underwriters shall have received on the
Closing Date a letter, dated the Closing Date, in form and
substance satisfactory to the Underwriters, from the
Company's independent public accountants, containing
statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into
the Prospectus.
9. TERMINATION. This Agreement may be terminated at
any time prior to the Closing Date by the Manager by written
notice to the Company if any of the following has
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<PAGE>
occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any
adverse change or development involving a prospective adverse
change in the condition, financial or otherwise, of the Company
or any of its subsidiaries or the earnings, affairs, or business
prospects of the Company or any of its subsidiaries, whether or
not arising in the ordinary course of business, which would, in
the judgment of the Manager, make it impracticable to market the
Offered Securities on the terms and in the manner contemplated in
the Prospectus, (ii) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and
adverse and would, in judgment of the Manager, make it
impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on the
New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for
securities on any such exchange or National Market System, (iv)
the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court
or other governmental authority which in the opinion of the
Manager materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or
any of its subsidiaries, (v) the declaration of a banking
moratorium by either federal or New York State authorities or
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs
which in the opinion of the Manager has a material adverse effect
on the financial markets in the United States.
10. DEFAULTING UNDERWRITERS. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to
purchase Underwriters' Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters'
Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount
of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount
of Underwriters' Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as
the Manager may specify, to purchase the Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no
event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the
written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default
occurs is more than
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<PAGE>
one-tenth of the aggregate amount of Underwriters' Securities to
be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters'
Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either
the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. COUNTERPARTS. This Agreement may be signed in two
or more counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York.
13. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
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<PAGE>
Exhibit A
UNDERWRITING AGREEMENT
(PRICING TERMS)
___________, 199_
HERITAGE MEDIA CORPORATION
ONE GALLERIA TOWER
13355 NOEL ROAD, SUITE 1500
DALLAS, TEXAS 75240
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below
(such underwriter or underwriters being herein called the
"Underwriters"), and we understand that Heritage Media
Corporation, an Iowa corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate initial
offering price of the Subordinated Debt Securities (the "Debt
Securities"). The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of October , 1995 (the
"Indenture") between the Company and , as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to
sell to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if
any, from [Date of Underwriters' Securities] to the date of
payment and delivery]:
<PAGE>
Principal Amount of
Name Debt Securities
---- ---------------
Total . . . . . .
The Underwriters will pay for the Debt Securities upon
delivery thereof at [office] at ______ a.m. (New York time) on
___________, 199_, or at such other time, not later than 5:00
p.m. (New York time) on __________, 199_, as shall be designated
by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the Closing Date.
The Debt Securities shall have the terms set forth in
the Prospectus dated ___________, 199_, and the Prospectus
Supplement dated ____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
2
<PAGE>
All provisions contained in the document entitled Heritage
Media Corporation Underwriting Agreement Standard Provisions
(Subordinated Debt Securities) dated October , 1995, a copy of
which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document
is otherwise defined herein, the definition set forth herein
shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to
be a part of this Agreement, (iii) all references in such
document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below.
Very truly yours,
[Manager(s)]
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By: _______________________________
Name:
Title:
Accepted:
Heritage Media Corporation
By: _________________________
Name:
Title:
3
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Heritage
Media Corporation, an Iowa corporation (the "Company"), and the
Company agrees to sell to the undersigned the Company's
securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated
__________________, 19__ and Prospectus Supplement dated
__________________, 19__, receipt of copies of which are hereby
acknowledged, at a purchase price stated in Schedule A and on the
further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company
Securities in the principal amount and numbers on the delivery
dates set forth in Schedule A. Each such date on which
Securities are to be purchased hereunder is hereinafter referred
to as a "Delivery Date."
Payment for the Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company or its order by certified or official bank check in New
York Clearing House funds at the office of ___________________,
New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date,
upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to
the Delivery Date.
<PAGE>
The obligation of the undersigned to take delivery of
and make payment for the Securities on the Delivery Date shall be
subject to the conditions that (1) the purchase of Securities to
be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to
above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
Failure to take delivery of and make payment for
Securities by any purchaser under any other Delayed Delivery
Contract shall not relieve the undersigned of its obligations
under this agreement.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or
delivered.
2
<PAGE>
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
HERITAGE MEDIA CORPORATION
By ________________________
3
<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the
representative of the Purchaser with whom details of delivery on
the Delivery Date may be discussed is as follows: (Please
print.)
Telephone No.
Name (Including Area Code) Department
________________ _______________ _________________
4
<PAGE>
SCHEDULE A
Securities:
Principal Amounts:
Purchase Price:
Delivery:
<PAGE>
EXHIBIT 4(a)
HERITAGE MEDIA CORPORATION
and
THE BANK OF NEW YORK
Trustee
=====================================
INDENTURE
Dated as of ______________, 1995
=====================================
<PAGE>
INDENTURE, dated as of _______________, 1995, between
HERITAGE MEDIA CORPORATION, a corporation duly organized and
existing under the laws of the State of Iowa (herein called the
"Company"), having its principal office at One Galleria Tower,
13355 Noel Road, Dallas, Texas 75240, and THE BANK OF NEW YORK, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the issuance from time to
time of its unsecured debentures, notes or other evidences of
indebtedness (the "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.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the
Securities of each series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference
therein, 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 (whether or not such is
indicated herein), and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such
2
<PAGE>
accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of
this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have
been duly adopted by its Board of Directors and to be in full
force and effect on the date of such certification and delivered
to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated
by law or executive order to close.
"Capital Expenditures" means the aggregate of all expenditures
by the Company
"Capital Lease Obligation" of any Person means the obligation
to pay rent or
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate
stock of such Person.
3
<PAGE>
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in The City of New York at which at any particular time
its corporate trust business shall be administered. At the time
of execution of this Indenture, such office of the Trustee is
located at 101 Barclay Street, Floor 21W, New York, New York 10286.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Agreement" means the Credit Agreement dated as of June 22,
1992 among Heritage Media Services, Inc., Citibank, N.A. (as agent),
NationsBank of Texas, N.A. (as co-agent) and the lenders named therein,
and any amendment thereto.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary," when used with respect to the Securities of any series
issuable or issued in whole or in part in global form, means The Depository
Trust Company ("DTC") or such other Person designated as Depositary by
the Company pursuant to Section 301 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.
"Event of Default" has the meaning specified in Section 501.
4
<PAGE>
"Exchange Act" refers to the Securities Exchange Act of 1934
as it may be amended and any successor act thereto.
"HMSI Notes" means the 11% Senior Secured Notes Due 2002 in
the original principal amount of $150,000,000 issued by Heritage
Media Services, Inc. and guaranteed as to payment by the Company.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion,
exchange or otherwise), assume, Guarantee or otherwise become
liable in respect of such Indebtedness or other obligation or the
recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring"' shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that a change
in generally accepted accounting principles that results in an
obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an Incurrence of such Indebtedness.
"Indebtedness" 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), (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 Capital 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;
and (iii) the maximum fixed liquidation preference, redemption or
repurchase price of Redeemable Stock of such Person at the time of
determination; PROVIDED that Indebtedness shall not include accounts
payable or liabilities to trade creditors of any entity.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include and incorporate by reference the
forms and terms of particular series of Securities established as
contemplated hereunder.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
5
<PAGE>
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security 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, with respect to the Company, its Chairman
of the Board, its President or a Vice President, its Treasurer,
its Secretary or an Assistant Secretary,
"Officers' Certificate" means a certificate signed by an
Officer of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 1004(a) shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee and
which opinion shall be reasonably satisfactory to the Trustee.
"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 for whose payment or redemption money
in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as a Paying Agent) for the Holders
of such Securities; PROVIDED that, if such Securities are to
be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been defeased pursuant to
Section 1202 hereof; and
(iv) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization,
6
<PAGE>
direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall
be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
"PARI PASSU", when used with respect to the ranking of any
Indebtedness of any Person in relation to other Indebtedness of
such Person, means that each such Indebtedness (a) either (i) is
not subordinated in right of payment to any other Indebtedness of
such Person or (ii) is subordinate in right of payment to the
same Indebtedness of such Person as is the other and is so
subordinate to the same extent and (b) is not subordinate in
right of payment to the other or to any Indebtedness of such
Person as to which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"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 Stated 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, partnership,
joint venture, 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 301 and 1002.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
7
<PAGE>
"Redeemable Stock" means, with reference to any series of
Securities, any equity security that by its terms or otherwise is
required to be redeemed prior to the Stated Maturity of such
Securities or is redeemable at the option of the holder thereof
at any time prior to the Stated Maturity of such Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"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 301.
"Related Person" means (i) any Affiliate of the Company,
(ii) any individual or entity who directly or indirectly holds
10% or more of any class of Capital Stock of the Company, (iii)
any relative of such individual by blood, marriage or adoption
not more remote than first cousin and (iv) any officer or
director of the Company.
"Responsible Officer", when used with respect to the
Trustee, means any officer within the corporate trust department
(or any successor group) including, without limitation, any Vice
President, any assistant secretary or any other officer of the
Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"Restricted Payment" means, with respect to any Person, (i)
any dividend or other distribution on any shares of such Person's
Capital Stock or (ii) any purchase, redemption, defeasance,
retirement or other acquisition of Capital Stock or of options,
warrants or other rights to acquire Capital Stock; PROVIDED,
HOWEVER, that Restricted Payments shall not include any dividends
or other distributions paid by a Subsidiary of the Company to the
Company or to another Subsidiary.
"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.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means (i) all principal of or interest
on or in connection with Indebtedness (whether outstanding at the
date of this Indenture or hereafter
8
<PAGE>
incurred), (ii) all charges, fees, expenses (including reasonable
attorneys' fees and expenses) and other amounts owing to holders
of Indebtedness described in clause (i) above in connection with such
Indebtedness, and (iii) renewals, extensions and refundings of
Indebtedness described in clauses (i) and (ii) above, unless in
each case, the instrument or document evidencing such
Indebtedness expressly provides that such Indebtedness (a) is
expressly subordinate to other Indebtedness of the Company or (b)
is not superior in right of payment to the Securities; PROVIDED,
HOWEVER, that Senior Indebtedness shall not include the
Securities or the Subordinated Notes, or any renewals, extensions
or refundings of such notes.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in
such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
"Subordinated Notes" means the 11% Senior Subordinated Notes due 2002
issued by the Company pursuant to an Indenture dated as of October 1, 1992.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly
or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more
other Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management
and affairs thereof.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
PROVIDED, HOWEVER, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"U.S. Person" means, unless, otherwise specified with
respect to the Securities of any series as contemplated by
Section 301, 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
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or trust, the income of which is subject to United States federal
income taxation regardless of its source.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title
"vice president".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of
directors (or persons performing similar functions) of such
Person, whether at all times or only so long as no senior class
of securities has such voting power by reason of any contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act or this
Indenture. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an
officer 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 requirement set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer 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 of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any
request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the
case may be. With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security 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 the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE OR 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 if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trustee Office, Attention: Corporate Trust Trustee
Administration, or with respect to notices by the Company
transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the
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following facsimile number: 212-815-5915 (telephone number:
212-815-5375), 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 it at the address of its principal
office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to
the Trustee by the Company, or with respect to notices by
the Trustee, transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following
facsimile number: (214) 702-7382 (telephone number (214) 702-7380).
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
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SECTION 108. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal (and premium, if
any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made
on the Interest Payment Date, Redemption Date or at the Stated
Maturity, and no interest shall accrue in respect of such payment
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
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ARTICLE TWO
Form of Security
SECTION 201. FORM GENERALLY.
The Securities of each series shall be in substantially such
form or forms as shall be established by or pursuant to a Board
Resolution or one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the
Officers executing such Securities as evidenced by their
execution of such Securities. If temporary Securities of any
series are issued as permitted by Section 304, the form or forms
thereof also shall be established as provided in the preceding
sentences. If the forms of Securities 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 or forms of Securities
shall be delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted
by the rules of any securities exchange on which the Securities
may be listed, all as determined by the Officers executing such
Securities as evidenced by their execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series described in the
within-mentioned Indenture.
Dated: THE BANK OF NEW YORK
As Trustee
By: _________________________
Authorized Signatory
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SECTION 203. 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
303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver
any security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or
in the applicable Company Order. Any instructions by the Company
with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply
with Section 102 hereof and need not be accompanied by an
Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 303 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 102 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 303.
Notwithstanding the provisions of Section 201 and 307,
unless otherwise specified as contemplated by Section 301,
payment of principal of, premium, if any, and interest on any
Security in permanent global form shall be made to the registered
holder thereof.
SECTION 204. 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 301:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF
THE INDENTURE DATED AS OF ____________, 1995, 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
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BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE THREE
The Securities
SECTION 301. AMOUNT UNLIMITED, ISSUABLE IN SERIES.
(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 303) 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);
(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 or portions thereof
pursuant to Section 304, 305, 306 or 1108 or any Securities
that, pursuant to Section 303, 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
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or extend any Interest Payment Date and the Regular Record
Date, if any, for the interest payable on any 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, and any Securities of the series
may be surrendered for registration of transfer or exchange,
if other than the Corporate Trust Office, where notices and
demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served if other than
as provided in Sections 105 and 1002 and where notices to
Holders pursuant to Section 106 will be published;
(6) any periods within which, prices at which, and any
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
1104, 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) any obligation 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 any
periods within which, prices at which, and any 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, the denominations in which Securities of the
series shall be issuable;
(9) if the amount of any payment of principal of,
premium, if any, or interest, if any, on, the Securities of
the series shall be determined with reference to an index,
formula or other method, the index, formula or other method
by which such amounts shall be determined and any special
voting, defeasance or other provisions in connection therewith;
(10) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series
which shall be payable upon declaration of acceleration thereof
pursuant to Section 502 or the method by which such portion shall
be determined;
(11) if other than as provided in Section 307, the Person to
whom any interest on any Security of the series shall be payable;
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(12) any provisions granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified,
(13) any deletions from, modifications of or additions
to the Events of Default set forth in Section 501 or the
covenants of the Company set forth in Article Ten pertaining
to the Securities of the series;
(14) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional
amounts on the Securities of the 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);
(15) if other than the date of original issue of the
first Security of the series to be issued, the date as of
which 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;
(16) the applicability, if any, to the Securities of
the series of Sections 1202 and 1203, or such other
means of defeasance or covenant defeasance as may be
specified for the Securities of the 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;
(17) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent for the Securities of the series;
(18) if the Securities of the series shall be issued in
whole or in part in global form, (i) the identity of any
Depositary for such global Securities other than DTC and
(ii) if other than as provided in Section 305, the
circumstances under which any exchange of interests in any
Securities of the series in global form for certificated
Securities of such series may occur;
(19) any restrictions on the registration, transfer or
exchange of the Securities of the series in addition to, in
modification of or deletion from those contained in Section 305;
(20) 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
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conditions in addition to those specified in this Indenture,
the form and terms of such certificates, documents or conditions;
(21) subject to Article Thirteen, the relative degree
to which the Securities of the series shall be senior to or
be subordinated to other Indebtedness of the Company in
right of payment; and
(22) any other terms of the Securities 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 the Securities of the series.
(c) All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided (i) in a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 303) set
forth, or determined in the manner provided, in 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 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301, any
Securities of a series shall be issuable in denominations of $1,000
and any integral multiple thereof.
SECTION 303. 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.
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Securities 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 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 ln 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 201 and 301, in authenticating such
Securities and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to sections 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities have been established
by or pursuant to a Board Resolution as permitted by Section 201,
that such forms have been established in conformity with the
provisions of this Indentures
(2) if the terms of such Securities have been
established by or pursuant to a Board Resolution as
permitted by Section 301, that such terms have been, or in
the case of Securities of a series offered ln 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, 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.
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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 provisions of Section 301 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 301
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 Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of
Securities of such series.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part
in 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 ln 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 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 204.
Each Depositary designated pursuant to Section 301 for a
Security in global form must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency
registered under the 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 Security shall be dated the date of its authentication.
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No Security 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. 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.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with
Section 102 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 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute and, upon Company Order, the
Trustee shall authenticate and 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 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. 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 of the same tenor upon
surrender of the temporary Securities of such series at the
office or agency of the Company pursuant to Section 1002 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, 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. Until so
exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
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definitive Securities of such series except as otherwise specified
as contemplated by Section 301.
SECTION 305. 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 1002 in a Place of
Payment a register (the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and the
registration transfers of Securities. The Security 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 "Security Registrar" for
the purpose of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any Security
of any series at the office or agency maintained pursuant to
Section 1002 in a Place of Payment for the Securities of such
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same
series, in authorized denominations, like aggregate principal
amount and containing identical terms and provisions.
At the option of the Holder, Securities of any series
(except a Security in global form) may be exchanged for other
Securities of the same series, in any authorized denominations,
of a like aggregate principal amount and containing identical
terms and provisions, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
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 303, the Company shall appoint a
successor Depositary with respect to the Securities of such
series. If a successor Depositary for the Securities
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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
301(b)(18) shall no longer be effective with respect to the
Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series and tenor,
shall authenticate and deliver, Securities of such series and
tenor in certificated form, in authorized denominations and in
like aggregate principal amount and containing identical terms
and provisions, in exchange for such global Security.
The Company may at any time in its sole discretion determine
that Securities of any series 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 and tenor, shall
authenticate and deliver, Securities of such series and tenor
in certificated form, in authorized denominations and in like
aggregate principal amount and containing identical terms and
provisions in exchange for such global Security.
If an Event of Default occurs and is continuing with respect
to Securities of any series issued in global form, upon written
notice from the Depositary, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series and tenor,
shall authenticate and deliver, Securities of such series and
tenor in certificated form, in authorized denominations and in
like aggregate principal amount and containing identical terms
and provisions, in exchange for such global Security.
Whenever a global Security of any series is to be exchanged
in whole or in part for certificated Securities pursuant to the
provisions of this Section or the terms of the Securities of such
series established as contemplated by Section 301, the Depositary
for such global Security may surrender such global Security 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, in any authorized denomination 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
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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. 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 Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company,
the Security Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company, the Security 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 ln connection with any
registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 1108 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities of any series and tenor
for a period beginning at the opening of business 15 days before
any selection for redemption of Securities of like series and
tenor 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 series and tenor; or
(ii) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
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SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver a replacement Security of the same series and tenor,
containing identical terms and provisions and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them, and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute, and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a replacement Security of the same series and
tenor, containing identical terms and provisions and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Unless otherwise provided as contemplated by Section
301, interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one
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or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
(b) Unless otherwise provided as contemplated by Section
301, any interest on 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 Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose name such 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,
provided that the Company may pay Defaulted Interest during the
five business days immediately following an Interest Payment Date
on which payment of interest was not punctually paid or duly
provided for in whose name the Securities were registered at the
close of business to the Persons on the Regular Record Date
immediately preceding such Interest Payment Date. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names such 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 any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
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payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of any Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in 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
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 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be returned to the Company.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301,
interest on all Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. 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.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Company Request cease to be of
further effect with respect to Securities of or within any series
(except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the
Trustee, on written demand of and at the expense of the Company,
shall execute instruments reasonably satisfactory to the Trustee
and the Company acknowledging satisfaction and discharge of this
Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) such Securities for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
for principal (and premium, if any) and interest to the date
of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company in respect of such Securities; 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 in respect of such
Securities have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture in respect of such Securities pursuant to this Article
Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Company to any Authenticating Agent
under Section 614 and, if money shall have been deposited with
the Trustee pursuant to subclause (B) of Clause (1) of this Section,
the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive in respect of such Securities.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
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ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to the Securities
of any series upon the (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(2) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default in the performance, or breach, of Section 801; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture applicable to the
Securities of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of any Indebtedness by the Company
or any Subsidiary of the Company or under any mortgage(s),
indenture(s) or instrument(s) under which there may be issued or
by which there may be secured or evidenced any Indebtedness by
the Company or any such Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of
$1,500,000, whether such Indebtedness now exists or shall
hereafter be created, which default or defaults shall constitute
a failure to pay any portion of the principal of such
Indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or shall have
resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become
due and payable; or
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(6) final judgment or final judgments for the payment of
money are entered against the Company or any Subsidiary of the
Company in an aggregate amount in excess of $2,000,000 by a
court or courts of competent jurisdiction, which judgments remain
undischarged or unbonded for a period (during which execution
shall not be effectively stayed) of 60 days after the right to
appeal all such judgments has expired; or
(7) entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Subsidiary of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company or any such Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any such Subsidiary under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any such Subsidiary or of any
substantial part of the property of the Company or any such
Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any such Subsidiary, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) commencement by the Company or any Subsidiary of the
Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by the Company or any
such Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Subsidiary of the Company in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Subsidiary of the Company,
or the filing by the Company or any such Subsidiary of a petition
or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company or
any such Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company or any Subsidiary of the Company or of any
substantial part of the property of the Company or any Subsidiary
of the Company, or the making by the Company or any Subsidiary of
the Company of an assignment for the benefit of creditors, or the
admission by the Company or any such Subsidiary in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any such Subsidiary
in furtherance of any such action.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Section 501(7) or (8)) occurs and is continuing with
respect to the Securities of any series, then and in every such
case, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may
declare all of the Securities of such series to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such
declaration such principal shall become immediately due and
payable. If an Event of Default specified in Section 501(7) or
(8) occurs, the Securities then Outstanding shall ipso facto
become immediately due and payable without any declaration or
other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay (A) all overdue interest on all Securities
of such series, (B) the principal of (and premium, if any, on)
any Securities of such series which have become due otherwise
than by such declaration of acceleration and, to the extent that
payment of such interest is lawful, interest thereon at the rate
provided by the Securities, (C) to the extent that payment of
such interest is lawful, interest upon overdue interest at the
rate provided by the Securities of such series, and (D) all sums
paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of
the principal of Securities of such series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of [____] 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 the Trustee,
for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal of
(and premium, if any) and interest on, and, to the extent that
payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates provided by such Securities, and,
in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements, advances or
liabilities of the Trustee, its agents and counsel incurred
hereunder.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company
or any other obligor upon the Securities, or the property of the
Company or its creditors 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
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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 Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 607.
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 any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest,
upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if
fully paid: first, to the payment of all amounts due the Trustee
under Section 607; and second, to Holders of Securities 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, 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 (and premium, if
any) and interest, respectively; and third, to the Company.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series; it being understood and intended that
no one or more 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
Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
right of any Holder of any Security to receive payment of the
principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities
expressed in such Security (or in the case of redemption, on the
Redemption Date) or 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.
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SECTION 509. RESTORATION OF RIGHT 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 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities of each series affected (with all such
series voting as one 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 the Trustee, PROVIDED that
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(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security 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 514. 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 (including legal fees and expenses) of such suit, and may
assess such costs against any party litigant in the manner and to
the extent provided in the Trust Indenture Act; PROVIDED, 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 Trustee or in
any suit for the enforcement of any right to payment referred to
in Section 508, or to any suit instituted by Holders of more than
10% of the Outstanding principal amount of Securities of any series.
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ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements
of this Indenture but need not confirm the accuracy of any
calculations contained therein.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
EXCEPT that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
relating to the time, method and place of conducting any
proceeding for any remedy
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available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any liability, loss or risk in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS; NOTICE OF ACCELERATION.
If a default occurs and is continuing with respect to the
Securities of any series, the Trustee shall, within 90 days after
such default occurs, transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived;
PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on
any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of
Securities of such series; and PROVIDED, FURTHER, that in the
case of any default of the character specified in Section 501(4),
no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
Promptly upon receiving a copy of a Notice of Acceleration with
respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice
of receipt of such Notice of Acceleration.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion,
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report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, order, demand or direction of the
Company mentioned herein shall be sufficiently evidenced by
a Company Request or Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
regulation, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder; and
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(h) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be (i)
accountable for the use or application by the Company of
Securities or the proceeds thereof, (ii) accountable for any
money paid to the Company, or upon the Company's direction, if
made under and in accordance with any provision of this Indenture
or (iii) responsible for the use or application of any money
received by any Paying Agent other than itself.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security 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, subject to Sections 608 and
613, may otherwise deal with the Company or any other obligor
upon the Securities with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder 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 in writing
with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company covenants and agrees
(1) to pay to the Trustee from time to time
compensation as shall be agreed to in writing between the
Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents, counsel and all persons not
regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee in its individual capacity and each of
its officers, directors, agents and attorneys-in-fact for,
and to hold each such person harmless against, any loss,
claim, liability, damage or expense including taxes (other
than taxes based on the income of the Trustee) incurred
without negligence or bad faith on such person's part,
arising out of or in connection with the acceptance or
administration of this Indenture or the performance of any
of its powers or duties hereunder, including the costs and
expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its
powers or duties hereunder and complying with any process
served upon the Trustee or any such other person hereunder
or thereunder.
The obligation of the Company under this Section 607 to
compensate the Trustee and to pay, indemnify and reimburse the
Trustee for such expenses, disbursements and advances shall
constitute additional Indebtedness hereunder. The Trustee shall
have a lien prior to the Securities as to all property and funds
held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 607, except with respect to
funds held in trust for the benefit of the Holders of particular
Securities. Such obligations shall survive the satisfaction and
discharge of this Indenture and any rejection of this Indenture
by any bankruptcy court.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 501(7) or
501(8), the parties hereto and the Holders, by their acceptance
of the Securities, hereby agree that the expenses and the
compensation for services are intended to constitute expenses of
administration under any applicable bankruptcy law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
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.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000 and its Corporate Trust Office in The City of New
York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person 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 hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company and written notice to the Holders
in the manner provided by Section 105 and Section 106. If an
instrument of acceptance by a successor Trustee 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.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and the Company. If an
instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of
such notice of such removal, the removed Trustee may petition any
court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee and appoint a successor Trustee, or (ii)
subject to Section 514, 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 and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter
provided, 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 appointment of a successor Trustee.
(f) The Company shall give written notice of each
resignation and each removal of the Trustee and each appointment
of a successor Trustee to all Holders in the manner provided in
Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
written request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of any amounts then due it
under Section 607, 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
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hereunder. Upon request of any such successor Trustee and 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. Any Trustee ceasing to act shall nevertheless
retain a lien upon all property or funds held or collected by the Trustee
to secure any amounts due it pursuant to Section 607.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities, the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor). For the purposes of Section 311(b)(4) and
(6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which
full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured
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by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may from time to time appoint an Authenticating
Agent or Agents which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and
upon exchange, registration of transfer or partial redemption or
pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The
Trustee may at any time terminate the
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agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment to all Holders in the manner provided in Section 106.
Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
As Trustee
By:_________________________
As Authenticating Agent
By:_________________________
Authorized Signatory
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, on each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished;
EXCLUDING from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust
Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports, if
any, concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission,
with the Company. The Company will notify the Trustee in writing
when the Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. MERGERS, CONSOLIDATIONS AND CERTAIN SALES AND
PURCHASES OF ASSETS.
The Company (a) shall not consolidate with or merge into any
other Person or permit any other Person to consolidate with or
merge into the Company and (b) shall not, directly or indirectly,
transfer, sell, convey, lease otherwise dispose of all or
substantially all of its properties and assets as an entirety UNLESS
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(1) immediately after giving effect to such
transaction and treating any Indebtedness that becomes an
obligation of the Company or a Subsidiary of the Company, as
a result of such transaction, as having been Incurred by the
Company or such Subsidiary at the time of the transaction,
no Event of Default or event that, with the passing of time
or the giving of notice, or both, would become an Event of
Default, shall have occurred and be continuing;
(2) in a transaction in which the Company does not
survive or in which the Company sells, leases or otherwise
disposes of all or substantially all of its assets, the
successor entity to the Company is organized under the laws
of the United States or any State thereof or the District of
Columbia and expressly assumes, by a supplemental indenture
executed and delivered to the Trustee in the form
satisfactory to the Trustee, all of the Company's
obligations under the Indenture; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale,
lease or other disposition of all or substantially all of the
properties and assets of the Company as an entirety in accordance
with Section 801, the Successor Company shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Company, and the Trustee,
at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture
under the Trust Indenture Act; or
(4) to cure any ambiguity, to correct or supplement any
provision herein or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED that
such action pursuant to this Clause (4) shall not adversely
affect the interests of the Holders in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of all series
affected thereby (all such series voting as a class), by Act of
said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution of the Company,
and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable thereon, or change the place of
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payment where, any Security or any premium or interest thereon
if 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) (except as permitted by Section 901(4)), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in
this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1009, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that such
supplemental indenture is enforceable against the Company or its
successors, as applicable, in accordance with its terms. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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
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one or more particular series of Securities, or which modified the
rights of the Holders 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.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities 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 so modified as to conform, in the opinion of the
Trustee, 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.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities 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 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 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,
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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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities 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 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.
SECTION 1003. MONEY FOR SECURITY; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents,
it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities, 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 in writing of its action or failure so to act.
The Company will cause each Paying Agent 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 (i)
comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent, (ii) give the Trustee notice of any
default by the Company (or any other obligor upon the Securities)
in the making of any payment of principal of (and premium, if
any) or interest in respect of the Securities and (iii) during
the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in
respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent as such.
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
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direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security
and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor,
look only to the Company as trustee thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust
money, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
(b) The Company shall deliver to the Trustee, immediately
after the Company becomes aware of the occurrence of an Event of
Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with
respect thereto.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company shall not be
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required to preserve any such right or franchise if the Board of
Directors in good faith shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the
Company to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section
shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
as determined by the Board of Directors in good faith, desirable
in the conduct of its business or the business of any Subsidiary
and not disadvantageous in any material respect to the Holders.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any of its Subsidiaries or upon the income,
profits or property of the Company or any of its Subsidiaries,
and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of
the Company or any of its Subsidiaries; PROVIDED, HOWEVER, that
the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1008. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Subsidiaries to, keep
at all times all of their properties which are of an insurable
nature insured against loss or damage with insurers believed by
the Company to be responsible to the extent that property of
similar character is usually so insured by corporations similarly
situated and owning like properties in accordance with good
business practice.
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SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Section 801 and
Sections 1005 to 1008, if before the time for such compliance the
Holders of at least a majority in principal amount of the
Outstanding Securities of all series (voting as one class) shall,
by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
If so provided pursuant to Section 301, a series of
Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after the
Redemption Dates and at the Redemption Prices specified with
respect to a series of Securities as contemplated by Section 301.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the election of
the Company, as permitted by any provision of this Indenture,
shall be made in accordance with such provisions and this
Article, subject to the provisions applicable to Securities of
such series pursuant to Section 301.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board
Resolution. In case of any redemption at the election of the
Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the
principal amount of such Securities to be redeemed.
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SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series are to be
redeemed, the particular Securities of such series to be redeemed
shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, substantially pro
rata, by lot or by such other method as the Trustee shall deem
fair and appropriate and if such Securities are listed on any
securities exchange, by a method that complies with the
requirements of such exchange, and which may provide for the
selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Securities
of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities
(including CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and any accrued interest,
(3) if less than all the Outstanding Securities are to
be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
and any accrued interest will become due and payable upon
each such Security to be redeemed and that interest thereon
will cease to accrue on and after said date, and
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(5) the name of the Paying Agent and place or places
where such Securities are to be surrendered for payment of
the Redemption Price and any accrued interest.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's written request, by the Trustee in the name and at the
expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be
an Interest Payment Date) accrued and unpaid interest on, all the
Securities which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued and unpaid interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
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 provided by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security of any series and tenor which is to be redeemed
only in part shall be surrendered at an office or agency of the
Company designated for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the
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Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute
the Security and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities of the same series and tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
To the extent either Section 1202 or 1203 is applicable to
the Securities of any series pursuant to Section 301, the Company
may at its option, exercised by Board Resolution of the Company,
at any time, elect to defease the Outstanding Securities of such
series pursuant to Section 1202 or covenant defease the
Outstanding Securities of such series pursuant to Section 1203,
upon compliance with the conditions set forth below in this
Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
The Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of any
series to which this Section 1202 applies on the date the
conditions set forth below are satisfied (hereinafter,
"defeasance") with respect to such Securities. For this purpose,
such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all
its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute instruments in form
satisfactory to the Company and the Trustee acknowledging the
same), except for the following obligations, which shall survive
until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Securities to receive, solely from the
trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of (and
premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to
such Securities under Sections 304, 305, 306, 1002 and 1003, (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Twelve. Subject to compliance
with this Article Twelve,
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the Company may defease Securities under this Section 1202 notwithstanding
the covenant defeasance of such Securities under Section 1203.
SECTION 1203. COVENANT DEFEASANCE.
The Company shall be released from its obligations in
respect of the Securities of any series to which this Section 1203 applies
under Sections 1005 through 1008, inclusive, and Clauses (1), (3) and
(4) of Section 801, and the occurrence of any event specified in
Sections 501 (3) (with respect to Clauses (1), (3) or (4) of
Section 801), 501 (4) (with respect to any of Sections 1005
through 1008, inclusive), 501 (5), 501 (6), 501 (7) and 501 (8)
shall not be deemed to be an Event of Default on and after the
date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance") with respect to such Securities. For this
purpose, such covenant defeasance means that the Company may omit
to comply with and shall have no liability to Holders of such
Securities in respect of any term, condition or limitation set
forth in any such Section or Clause, whether directly or
indirectly by reason of any reference elsewhere herein to any
such Section or Clause or by reason of any reference in any such
Section or Clause to any other provision herein or in any other
document; but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of
either Section 1202 or Section 1203 to the then Outstanding
Securities of any series:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with
the provisions of this Article Twelve applicable to it) as trust
funds in trust for the purpose of making the payments described
below, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in
an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, the principal of,
premium (if any) and each installment of interest on such
Securities on the Stated Maturity of such principal or
installment of interest in accordance with the terms of this
Indenture and of such Securities. For this purpose, "Government
Obligations" means securities that are (i) direct obligations of
the United States or (ii) obligations of a Person controlled or
supervised by and acting as an
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<PAGE>
agency or instrumentality of the United States, the payment of which
is unconditionally guaranteed as a full faith and credit obligation
by the United States which 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.
(2) In the case of defeasance under Section 1202 of the
Securities of any series, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the Company has
received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal income tax law,
in either cage to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of
such series will not recognize gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of covenant defeasance under Section 1203
of the Securities of any series, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a
result of such deposit and covenant defeasance and will be
subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have
occurred and be continuing on the date of such deposit or,
insofar as subsections 501(7) and (8) are concerned, at any time
during the period ending on the 121st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest as defined in Section
608 and for purposes of the Trust Indenture Act with respect to
any securities of the Company.
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<PAGE>
(6) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or
by which it is bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 1202 or the covenant defeasance under
Section 1203 (as the case may be) have been complied with.
(8) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as
amended, or such trust shall be qualified under such act or
exempt from regulation thereunder.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively, for purposes of this Section 1205, the
"Trustee") pursuant to Section 1204 in respect of the Securities
of any series shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect the defeasance or covenant defeasance.
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<PAGE>
SECTION 1206. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1202 or 1203 by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Twelve until such time as
the Trustee or Paying Agent is permitted to apply all such money
in accordance with Section 1202 or 1203; PROVIDED, HOWEVER, that
if the Company makes any payment of principal of (and premium, if
any) or interest on any Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the
money held by the Trustee or the Paying Agent.
ARTICLE THIRTEEN
Subordination
SECTION 1301. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder,
by his acceptance of the Securities, agrees that the payment of
the principal of and interest on the Securities by the Company is
subordinated and subject in right of payment, to the extent and
in the manner provided in this Article Thirteen, to the prior
payment in full of Senior Indebtedness.
This Article will constitute a continuing offer to all
persons who become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made
obligees under this Article and they and/or each of them may
enforce its provisions.
SECTION 1302. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment will be made on account of principal of or
interest on the Securities, or to acquire any of the Securities
for cash or property, or on account of the redemption of the
Securities (other than a redemption of Securities by the Trustee
with funds irrevocably set aside in trust with the Trustee in
accordance with the provisions of Section 1205 hereof), (x) upon
the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, unless and until all principal thereof
and interest thereon shall first be paid in full in cash, or such
payment duly made in cash or in a manner satisfactory to the
holders of such Senior Indebtedness or (y) in the
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<PAGE>
event that the Company defaults in the payment of any principal of
or interest on or any other amounts payable on or in connection with
any Senior Indebtedness when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or
otherwise, unless and until such default has been cured or waived
in writing or has ceased to exist.
(b) Upon the happening of an event of default (or in an
event of default would result upon any payment with respect to
the Securities) with respect to any Senior Indebtedness, as such
event of default is defined in the instrument evidencing the
Senior Indebtedness or under which it is outstanding, permitting
the holders to accelerate its maturity (if the default is other
than a default in payment of the principal of or interest on or
other amount due in connection with such Senior Indebtedness),
upon written notice of the event of default given to the Company
and the Trustee by the holders of such Senior Indebtedness, then,
unless and until such event of default has been cured or waived
in writing or has ceased to exist, no payment will be made by the
Company with respect to the principal of or interest on the
Securities for cash or Property or on account of the prepayment
provisions of the Securities.
(c) The Company will 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, and in the event of any such event of default, will
provide to the Trustee in the form of an Officers' Certificate
the names and addresses of the holders of such Senior Indebtedness,
or the name and address of the trustee or trustees acting on their
behalf. The Trustee will be entitled to rely conclusively on such
Officers' Certificate without independent investigation.
(d) If any payment or distribution of assets of the Company
is received by the Trustee or any Holder or any paying agent at a
time when that payment or distribution should not have been made
because of Section 1302(a) or 1302(b), such payment or
distribution will be promptly paid over to the holders of Senior
Indebtedness which is due and payable and remains unpaid or
unprovided for or their representative for application to the
payment of such Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior
Indebtedness which is due and payable held by them) until all
such Senior Indebtedness has been paid in full, after giving
effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness.
SECTION 1303. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency,
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<PAGE>
receivership or similar proceeding related to the Company or its
property or upon an assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness will first be
entitled to receive payment in full of the principal and interest
due on Senior Indebtedness and other amounts due in connection
with Senior Indebtedness before the Holders are entitled to
receive any payment on account of the principal of or interest on
the Securities;
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities,
to which the Holders or the Trustee on behalf of the Holders
would be entitled except for the provisions of this Article
Thirteen will be paid by the liquidating trustee or agent or
other Person making such a payment or distribution directly to
the holders of Senior Indebtedness or their representatives to
the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holder of such Senior
Indebtedness or provision for that payment or distribution; and
(c) if, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities is received by the
Trustee or the Holders or any paying agent (or if the Company is
acting as its own paying agent, money for any such payment or
distribution will be segregated or held in trust) on account of
principal of or interest on the Securities before all Senior
Indebtedness is paid in full, or effective provision made for its
payment, such payment or distribution will be received and held
in trust for and will be promptly paid over to the holders of the
Senior Indebtedness which is due and payable and remains unpaid
or unprovided for or their representative for application to the
payment of such Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior
Indebtedness which is due and payable and held by them) until all
such Senior Indebtedness has been paid in full, after giving
effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness.
The Company will give prompt written notice to the Trustee
of any dissolution, winding up, liquidation or reorganization of
it or any assignment for the benefit of its creditors.
SECTION 1304. HOLDERS OF SECURITIES TO BE SUBROGATED TO RIGHTS
OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full in cash of all Senior Indebtedness,
the Holders shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets, cash,
property or securities of the Company
68
<PAGE>
applicable to the Senior Indebtedness until all amounts owing on
the principal of and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, (a) no such payments or
distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the
Trustee on their behalf would be entitled except for the provisions of
this Article Thirteen, and no payment over pursuant to the provisions of
this Article Thirteen to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee on their behalf shall, as between the
Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness, and (b)
no payment or distributions of cash, Property or securities to or
for the benefit of the Holders of the Securities pursuant to the
subrogation provision of this Article which would otherwise have
been paid to the holders of Senior Indebtedness shall be deemed
to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article
are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1305. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or will impair, as
between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional,
to pay to the Holders of the Securities the principal of and
interest on the Securities as and when they become due and
payable in accordance with their terms, or is intended to or will
affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Senior
Indebtedness, nor will anything herein or therein prevent the
Trustee or any Holder of the Securities from exercising all
remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise
of any such remedy. So long as the provisions of this Article
Thirteen have been brought to the attention of the court of
competent jurisdiction, tribunal, trustee or other person making
the payment or distribution, upon any distribution of assets of
the Company referred to in this Article, the Trustee and the
Holders of the Securities will be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation, reorganization or
similar proceedings are pending, or a certificate of the
liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders of the Securities
for the purpose of ascertaining the persons entitled to
participate in such distribution, the amounts distributed or to
be distributed to them and all other facts pertinent to this
Article Thirteen.
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<PAGE>
SECTION 1306. TRUSTEE AND PAYING AGENT ENTITLED TO ASSUME
PAYMENTS NOT PROHIBITED IN ABSENCE OF NOTICE.
Notwithstanding any other provision of this Indenture, the
Trustee and Paying Agent will not at any time be charged with
knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee or the Paying Agent
unless and until a Responsible Officer of the Trustee or the
Paying Agent has received written notice thereof from the Company
or from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any such
written notice, the Trustee and Paying Agent will be entitled in
all respects conclusively to assume that no such fact exists.
The Trustee will be entitled to rely on the delivery to it
of a written notice by a person representing himself, herself, or
itself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder).
Nothing contained in this Section 1306 limits the respective
rights of the holders of Senior Indebtedness to recover payments
as contemplated by Section 1302.
SECTION 1307. APPLICATION BY TRUSTEE OF MONEYS DEPOSITED WITH IT.
Any deposit of moneys by the Company with the Trustee or any
Paying Agent for the payment of principal of or interest on the
Securities, except to the extent allocated and held by the
Trustee for the payment of principal of or interest on specific
Securities which have been defeased or defeased and called for
redemption in accordance with Article Ten hereof, will be subject
to the provisions of Sections 1301, 1302, 1303 and 1304 except
that, prior to the receipt of the notice provided for in Section
1306, the Trustee will be entitled to assume that no such facts
exist; PROVIDED, HOWEVER, that if on a date not less than two
Business Days prior to the date on which by the terms of this
Indenture any such moneys may become payable for any purpose
(including, without limitation, the payment of either principal
of or interest on the Securities) the Trustee or such Paying
Agent have not received with respect to such moneys the notice
provided for in Section 1306, then the Trustee or such Paying
Agent will have full power and authority to receive such moneys
and to apply the same to the purpose for which they were
received, and will not be affected by any notice to the contrary
which may be received by it on or after such date. Nothing
herein will be construed to relieve any Holders from duties
imposed upon them under Section 1303(c) with respect to moneys
received in violation of the provisions of this Article.
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<PAGE>
SECTION 1308. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein will at
any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with. The holders of Senior
Indebtedness may extend, renew, modify, amend, compromise,
supplement or waive the terms of the Senior Indebtedness
(including modifications and amendments which increase the
principal amount of such Senior Indebtedness) or any security
therefor and release, sell or exchange such security and
otherwise deal freely with the Company, all without affecting the
liabilities and obligations of the parties to the Indenture or
the Holders of the Securities. No provision in any supplemental
indenture which affects the superior position of the holders of
the Senior Indebtedness will be effective against the holders of
the Senior Indebtedness who have not consented thereto.
SECTION 1309. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES.
Each Holder of Securities by his acceptance of them
authorizes and expressly directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article, and appoints the
Trustee his attorney-in-fact for such purposes, including, in the
event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending
towards liquidation of the business and assets of the Company or
the filing of a claim for the unpaid balance of its or his
Securities in the form required in those proceedings. If the
Trustee does not file a proper claim or proof of debt in the form
required in such proceeding at least 30 days before the
expiration of the time to file such claim or claims, then the
holders of Senior Indebtedness are hereby authorized to have the
right to file and are hereby authorized to file an appropriate
claim for and on behalf of the Holders of Securities.
SECTION 1310. RIGHT OF TRUSTEE AND PAYING AGENT TO HOLD SENIOR
INDEBTEDNESS.
Subject to the provisions of Sections 310(b) and 311 of the
Trust Indenture Act of 1939, the Trustee and the Paying Agent
will be entitled to all of the rights set forth in this Article
in respect of any Senior Indebtedness at any time held by either
of them to the same extent as any other holder of Senior
Indebtedness, and nothing in this
71
<PAGE>
Indenture will be construed to deprive the Trustee or the paying agent
of any of its rights as such holder.
SECTION 1311. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this
Article will not be construed as preventing the occurrence of an
Event of Default.
SECTION 1312. NO FIDUCIARY DUTY CREATED TO HOLDERS OF SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article, and no implied obligations or covenants with respect to
the holders of Senior Indebtedness will be read into this
Indenture against the Trustee. The Trustee will not be deemed to
owe any fiduciary duty to holders of Senior Indebtedness and
shall not be liable to any such holders if it mistakenly pays
over or delivers to Holders of Securities, the Company, or any
Person, money or assets to which any holder of Senior
Indebtedness will be entitled by virtue of this Article or
otherwise.
SECTION 1313. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article will apply to amounts due to the
Trustee pursuant to other sections of this Indenture.
SECTION 1314. REPRESENTATIVE OF SENIOR INDEBTEDNESS.
Any notices to be given or payments to be made to any
holders of Senior Indebtedness pursuant to this Indenture may be
made or given to their authorized representative.
72
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
HERITAGE MEDIA CORPORATION
By: _________________________________
[SEAL]
ATTEST:
________________________________
THE BANK OF NEW YORK, as Trustee
By: _________________________________
[SEAL]
ATTEST:
________________________________
73
<PAGE>
STATE OF TEXAS )
)
COUNTY OF DALLAS )
Before me, the undersigned, on this day personally appeared
________________, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same for the purposes and consideration
therein expressed.
Given under my hand and seal of office this ____ day of _________, 1995.
[SEAL] ______________________________________
Notary Public, in and for the
State of Texas
My Commission Expires:
___________________________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
Before me, the undersigned, on this day personally appeared
____________________, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me
that he/she executed the same for the purposes and consideration
therein expressed.
Given under my hand and seal of office this ____ day of _________, 1995.
[SEAL] ____________________________________
Notary Public, in and for the
State of New York
My Commission Expires:
___________________________
74
<PAGE>
Exhibit 5
(214) 953-0053
November 3, 1995
Heritage Media Corporation
One Galleria Tower
13355 Noel Road, Suite 1500
Dallas, Texas 75240
Gentlemen:
We have served as counsel for Heritage Media Corporation, an
Iowa corporation (the "Company") in connection with the
Registration Statement on Form S-3 (the "Registration Statement")
filed under the Securities Act of 1933, as amended. The
Registration Statement has been prepared in connection with the
proposed issuance and sale from time to time of an aggregate of
$300,000,000 principal amount of subordinated debentures or notes
(the "Debt Securities") to be issued and sold by the Company in
one or more series. The Debt Securities are to be issued by the
Company under the terms of the Indenture (the "Indenture") between
the Company and The Bank of New York, as trustee.
We have examined such documents and questions of law as we
have deemed necessary to render the opinions expressed herein.
Based upon the foregoing, we are of the opinion that when the
Indenture has been duly executed and delivered by the Company and
when the Debt Securities of any series have been duly executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for in the manner contemplated by the
"Plan of Distribution" as described in the Registration Statement,
the Debt Securities of such series will be the legal, valid and
binding obligations of the Company, except as enforcement thereof
may be limited (i) by bankruptcy laws, insolvency laws or laws
generally affecting creditors' rights and (ii) by equitable
principles of general application.
<PAGE>
Heritage Media Corporation
November 3, 1995
Page 2
We consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name in the
Registration Statement and in the Prospectus included therein
under the heading "Validity of Securities."
Very truly yours,
CROUCH & HALLETT, L.L.P.
<PAGE>
EXHIBIT 12(a)
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION> Nine months
Year ended December 31, ended September 30,
------------------------------------------------ ------------------
1990 1991 1992 1993 1994 1995
------- ------- ------- ------ ------ --------------
<S> <C> <C> <C> <C> <C> <C>
Earnings (loss) before income taxes (28,774) (18,832) (13,386) 3,021 25,041 21,206
Fixed charges (1) 42,020 40,091 38,481 33,399 32,256 27,480
------- ------- ------- ------ ------ ------
Earnings (1) 13,246 21,259 25,095 36,420 57,297 48,686
------- ------- ------- ------ ------ ------
------- ------- ------- ------ ------ ------
Ratio of earnings to fixed charges -- -- -- 1.09 1.78 1.77
------- ------- ------- ------ ------ ------
------- ------- ------- ------ ------ ------
Deficiency of earnings to fixed charges (28,774) (18,832) (13,386) -- -- --
------- ------- ------- ------ ------ ------
------- ------- ------- ------ ------ ------
</TABLE>
(1) For purposes of computing the ratio of earnings to fixed charges,
"earnings" consists of earnings (loss) from continuing operations
before income taxes, extraordinary items and fixed charges. Fixed
charges consist of interest expense, including amortization of
debt discount, and one-third of rental expense representing the
estimated interest portion of rental payments on operating leases.
<PAGE>
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Heritage Media 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
Dallas, Texas
November 3, 1995
<PAGE>
Exhibit 25(a)
CONFORMED COPY
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
_________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
_________________________
HERITAGE MEDIA CORPORATION
(Exact name of obligor as specified in its charter)
Iowa 42-1299303
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
13355 Noel Road, Suite 1500
Dallas, Texas 75240
(Address of principal executive offices) (Zip code)
______________________
Subordinated Notes
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIA-
TION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24 OF THE
COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
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6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 19th day of October, 1995.
THE BANK OF NEW YORK
By: /S/ LLOYD A. MCKENZIE
________________________________
Name: LLOYD A. MCKENZIE
Title: ASSISTANT VICE PRESIDENT
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<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,025,419
Interest-bearing balances .......... 881,413
Securities:
Held-to-maturity securities ........ 1,242,368
Available-for-sale securities ...... 1,774,079
Federal funds sold in domestic
offices of the bank ................ 5,503,445
Securities purchased under agree-
ments to resell .................... 200,634
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................26,599,533
LESS: Allowance for loan and
lease losses ..............516,283
Loans and leases, net of unearned
income and allowance 26,083,250
Assets held in trading accounts ...... 1,455,639
Premises and fixed assets (including
capitalized leases) ................ 612,547
Other real estate owned .............. 79,667
Investments in unconsolidated
subsidiaries and associated
companies .......................... 198,737
Customers' liability to this bank on
acceptances outstanding ............ 1,111,464
Intangible assets .................... 105,263
Other assets ......................... 1,237,264
-----------
Total assets ......................... $43,511,189
-----------
-----------
LIABILITIES
Deposits:
In domestic offices ................ $19,233,885
Noninterest-bearing .......7,677,954
Interest-bearing .........11,555,931
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 12,641,676
Noninterest-bearing ..........72,479
Interest-bearing .........12,569,197
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,747,659
Securities sold under agreements
to repurchase .................... 73,553
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 738,317
Other borrowed money:
With original maturity of one year
or less .......................... 1,586,443
With original maturity of more than
one year ......................... 220,877
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,113,102
Subordinated notes and debentures .... 1,053,860
Other liabilities .................... 1,489,252
-----------
Total liabilities .................... 40,198,624
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,849,221
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ (662)
Cumulative foreign currency transla-
tion adjustments .................. (3,944)
-----------
Total equity capital ................ 3,312,565
-----------
Total liabilities and equity
capital ........................... $43,511,189
-----------
-----------
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Samuel F. Chevalier
