<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 8, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-3
-------------------------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
OUTDOOR SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 7312 86-073400
(STATE OR OTHER JURISDICTION, (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
(FOR CO-REGISTRANTS, PLEASE SEE "TABLE OF CO-REGISTRANTS" ON THE FOLLOWING PAGE)
-------------------------
2502 N. BLACK CANYON HIGHWAY
PHOENIX, ARIZONA 85009
(602) 246-9569
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
WILLIAM S. LEVINE
CHAIRMAN OF THE BOARD
2502 N. BLACK CANYON HIGHWAY
PHOENIX, ARIZONA 85009
(602) 246-9569
(NAME, ADDRESS, INCLUDING ZIP CODE, TELEPHONE INCLUDING AREA CODE, OF
REGISTRANT'S
PRINCIPAL NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------------------
COPIES TO:
GABRIEL DUMITRESCU, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
SIXTEENTH FLOOR
191 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
(404) 572-6600
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement, as
determined by the Registrants.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
(Continued on next page)
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
(Continued from previous page)
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, 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 PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OF
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1)(2) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of Outdoor
Systems, Inc. (the
"Company")(3)(4)...............
Guarantees of Co-Registrants of
Debt Securities(5).............
Preferred Stock of the
Company(4).....................
Common Stock of the Company(4)...
Warrants of the Company..........
Total............................ $1,000,000,000(6) $278,000
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time to
time by the Company in connection with the issuance of the securities
registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. Rule 457(o) permits the registration fee to be
calculated on the basis of the maximum offering price of all of the
securities listed and, therefore, the table does not specify by each class
information as to the amount to be registered, the maximum offering price
per unit or the proposed maximum aggregate offering price.
(3) If any Debt Securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result in
the initial offering price.
(4) Also includes (i) such indeterminate principal amount of Debt Securities as
may be issued upon the exercise of Warrants to purchase Debt Securities and
(ii) such indeterminate number of shares of Preferred Stock and Common Stock
as may be issued upon the exercise of Warrants to purchase shares of
Preferred Stock and Common Stock and upon exchange or conversion of any Debt
Securities exchangeable for or convertible into shares of Preferred Stock or
Common Stock, all subject to the limitations set forth in footnote (6)
below.
(5) No separate consideration will be received from purchasers of Debt
Securities with respect to these Guarantees and, therefore, no registration
fee is attributable to the Guarantees of the Debt Securities.
(6) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed $1,000,000,000
or the equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies. The aggregate amount of Common Stock
of the Company registered hereunder is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act. The securities
registered hereunder may be sold separately or as units with other
securities registered hereby.
<PAGE> 3
TABLE OF CO-REGISTRANTS
<TABLE>
<CAPTION>
PRIMARY
STANDARD
STATE OR OTHER INDUSTRIAL
JURISDICTION OF CLASSIFICATION IRS EMPLOYER
NAME INCORPORATION NUMBER IDENTIFICATION
- ---- --------------- -------------- --------------
<S> <C> <C> <C>
Atlanta Bus Shelters.................... Georgia 7319 58-1971773
Atlantic Prospect, Inc. ................ New York 7312 06-1508542
National Advertising Company............ Delaware 7312 36-2360530
New York Subways Advertising Co.,
Inc. ................................. Arizona 7319 86-0443845
OS Bus, Inc. ........................... Georgia 7319 86-0878376
OS Florida, Inc. ....................... Florida 7310 59-2795446
Outdoor Systems (New York), Inc. ....... New York 7312 11-1821182
Outdoor Systems Painting, Inc. ......... Arizona 7312 86-0638522
Pacific Connection, Inc. ............... Delaware 7312 86-0881130
Premier Sports Marketing, Inc. ......... Delaware 7319 77-0141025
Salm Enterprises, Inc. ................. California 7312 33-0020530
San Francisco Walls, Inc. .............. California 7312 94-3224536
</TABLE>
<PAGE> 4
PROSPECTUS
$1,000,000,000
OUTDOOR SYSTEMS, INC.
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK AND WARRANTS
Outdoor Systems, Inc. may offer to the public from time to time in one or more
series or issuances:
- - debt securities consisting of debentures, notes or other evidences of
indebtedness;
- - shares of its preferred stock;
- - shares of its common stock; or
- - warrants to purchase common stock, preferred stock or debt securities.
We urge you to read this prospectus and the accompanying prospectus supplement,
which will describe the specific terms of the debt securities, preferred stock,
common stock or warrants offered thereby, carefully before you make your
investment decision.
Our common stock is listed on the New York Stock Exchange and trades under the
trading symbol "OSI."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS IT IS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is , 1998.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Company......................... 3
About This Prospectus............... 3
Where You Can Find More
Information....................... 3
Use of Proceeds..................... 5
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends......................... 5
Ratio of Earnings to Fixed
Charges........................... 5
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Description of Debt Securities...... 6
Description of Preferred Stock...... 17
Description of Common Stock......... 19
Description of Warrants............. 21
Plan of Distribution................ 23
Legal Matters....................... 25
Experts............................. 25
</TABLE>
2
<PAGE> 6
THE COMPANY
Outdoor Systems, Inc. is the largest out-of-home media company in North America
operating approximately 111,000 bulletin, poster, mall and transit advertising
display faces in 90 metropolitan markets in the United States, 13 metropolitan
markets in Canada and 44 metropolitan markets in Mexico and approximately
125,000 subway advertising display faces in New York City. We have operations in
50 of the 50 largest United States markets, 13 of the 15 largest Canadian
markets and 44 of the largest 45 markets in Mexico.
As used herein:
- except as expressly indicated or unless the context otherwise requires,
the "Company," "we," "our" and "us" means Outdoor Systems, Inc. together
with its consolidated subsidiaries; and
- "market" in the United States refers to the geographic area constituting
a Designated Market Area as defined by The A.C. Nielsen Company, in
Canada refers to Census Metro Area as defined by Statistics Canada and in
Mexico refers to cities ranked by estimated population based on data from
Division de Estudios Economicos y Sociales de BANAMEX, Estimaciones
propias con datos de SAC Analisis Unit, Sistema de informacion
Socioeconomica (SIS), Mexico, 1997.
Our principal executive offices are located at 2502 N. Black Canyon Highway,
Phoenix, Arizona 85009, and our telephone number at that location is (602)
246-9569.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") using a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $1,000,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the SEC. Such
reports, proxy statements, and other information can be read and copied at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Room. The SEC maintains an Internet site at http://www.sec.gov that
contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including Outdoor
Systems, Inc. Our common stock is listed and traded on the New York Stock
Exchange ("NYSE") under the trading symbol "OSI." Reports, proxy statements and
other information are also available for inspection at the offices of the NYSE,
20 Broad Street, New York, New York, 10005.
3
<PAGE> 7
The SEC allows us to "incorporate by reference" the information we file with the
SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered part of
this prospectus, and any information we file with the SEC subsequent to this
prospectus will automatically be deemed to update and supersede this
information. We incorporate by reference the documents listed below which we
filed with the SEC and any filings that we will make with the SEC in the future
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until this offering is completed:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
- Amendment No. 1 on Form 10-K/A to Annual Report on Form 10-K for fiscal
year ended December 31, 1997 filed on March 26, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998;
- Current Report on Form 8-K filed on July 16, 1998;
- Amendment No. 1 on Form 8-K/A to Current Report on Form 8-K filed on
September 11, 1998;
- Description of our common stock contained in our Registration Statement
on Form 8-A filed on August 15, 1997; and
- The balance sheets of National Advertising Company as of December 31,
1996 and 1995 and the related statements of income and cash flows for
each of the three years in the period ended December 31, 1996, together
with notes thereto and Independent Auditor's Report thereon, contained in
the Company's Current Report on Form 8-K filed on August 29, 1997.
We will provide to each person, including any beneficial owner of our
securities, to whom this prospectus is delivered a copy of any or all of the
information incorporated by reference into this prospectus (but that was not
delivered with this prospectus). We will provide this information upon written
or oral request at no cost to the person making the request. You must make your
request for this information to Outdoor Systems, Inc., Attention: Bill M.
Beverage, Chief Financial Officer, Treasurer and Secretary, at 2502 N. Black
Canyon Highway, Phoenix, Arizona 85009, telephone number (602) 246-9569.
4
<PAGE> 8
USE OF PROCEEDS
We intend to use the net proceeds from the sale of any of the securities we are
offering hereby for general corporate purposes, which may include the repayment,
refinancing, redemption or repurchase of existing indebtedness or capital stock,
working capital, capital expenditures, acquisitions and investments. We will
provide additional information about the use of net proceeds from the sale of
any specific offering in the prospectus supplement relating to such offering.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the Company's ratio of earnings to combined fixed
charges and preferred stock dividends on a historical basis for the periods
indicated.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------- -------------
1993 1994 1995 1996 1997 1997 1998
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to combined fixed charges
and preferred stock dividends(1)............ 1.02x 1.14x 1.13x 1.57x 1.35x 1.34x 1.37x
</TABLE>
- -------------------------
(1) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs, and the component of rental expense
believed by management to represent the interest factor thereon.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed charges
on a historical basis for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------- -------------
1993 1994 1995 1996 1997 1997 1998
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)......... 1.02x 1.15x 1.14x 1.58x 1.35x 1.34x 1.37x
</TABLE>
- -------------------------
(1) For purposes of this calculation, "earnings" consist of income (loss) before
income taxes and fixed charges. "Fixed charges" consist of interest,
amortization of debt issuance costs, and the component of rental expense
believed by management to represent the interest factor.
5
<PAGE> 9
DESCRIPTION OF DEBT SECURITIES
We will issue any of the debt securities we are offering hereby (the "Debt
Securities") under an indenture (the "Indenture") to be entered into by the
Company, the subsidiaries, if any, that may guarantee the Company's payment
obligations under any series of Debt Securities (the "Guarantors") and a trustee
to be identified in the applicable prospectus supplement, as Trustee (the
"Trustee"). The terms of the Debt Securities will include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "TIA") as in effect on the date of the
Indenture. The Debt Securities will be subject to all such terms, and potential
purchasers of the Debt Securities are referred to the Indenture and the TIA for
a statement thereof. We filed a copy of the proposed form of Indenture as an
exhibit to the registration statement of which this prospectus is a part.
We may offer under this prospectus up to $1,000,000,000 aggregate principal
amount of Debt Securities, or if we issue Debt Securities at a discount, or in a
foreign currency or composite currency, such principal amount as we may sell for
an initial public offering price of up to $1,000,000,000. Unless we otherwise
specify in the applicable prospectus supplement, the Debt Securities will
represent our direct, unsecured obligations and will rank equally with all our
other unsecured indebtedness.
We own and operate a number of subsidiaries, and a significant portion of our
assets consists of investments in such subsidiaries. Our rights and the rights
of our creditors, including you if you purchase any Debt Securities, to
participate in the distribution of assets of any person in which we own an
equity interest (including any of our subsidiaries) upon such person's
liquidation or reorganization will be subject to prior claims of such person's
creditors, including trade creditors, except to the extent that we may be a
creditor with recognized claims against such person (in which case our claims
would still be subject to the prior claims of any secured creditors of such
person and of any holder of indebtedness of such person that is senior to that
held by us). Accordingly, you, as a holder of Debt Securities, may be deemed to
be effectively subordinated to such claims.
The following statements relating to the Debt Securities and the Indenture are
summaries and do not purport to be complete. Such summaries may make use of
certain terms defined in the Indenture and are qualified in their entirety by
express reference to the Indenture. We will describe the specific terms of any
series of Debt Securities in the applicable prospectus supplement. To the extent
that any particular terms of the Debt Securities described in a prospectus
supplement differ from any of the terms described herein, then such terms
described herein shall be deemed to have been superseded by the prospectus
supplement.
GENERAL
We will establish the terms of each series of Debt Securities by resolution of
the Board of Directors and such terms will be set forth or determined in the
manner provided in an Officers' Certificate or in a supplemental indenture. The
particular terms of each series of Debt Securities will be described in a
prospectus supplement relating to such series (including any pricing supplement
thereto). The Indenture does not limit the aggregate principal amount of Debt
Securities we may issue. We may issue Debt Securities in one or more series with
the same or various maturities, at par, at a premium, or at a discount. We will
set forth in a prospectus supplement (including any pricing supplement thereto),
the
6
<PAGE> 10
initial offering price, the aggregate principal amount and the following terms
of the Debt Securities being offered by this prospectus and the prospectus
supplement:
(1) the title of such Debt Securities;
(2) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Debt Securities will be issued;
(3) any limit on the aggregate principal amount of such Debt
Securities;
(4) the date or dates on which principal on such Debt Securities will
be payable;
(5) the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including
any commodity, commodity index, stock exchange index or financial index) at
which such Debt Securities will bear interest, if any, the date or dates
from which such interest, if any, will commence and be payable and any
regular record date for the interest payable on the interest payment date;
(6) the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable and the method of
such payment;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Debt Securities may be
redeemed, in whole or in part, at our option;
(8) whether we have the obligation to redeem or purchase the Debt
Securities in whole or in part pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof;
(9) the dates, if any, on which and the price or prices at which we
will repurchase the Debt Securities at the option of the holders thereof
and other detailed terms and provisions of such repurchase obligations;
(10) the denominations in which we may issue such Debt Securities, if
other than denominations of $1,000 and any integral multiple thereof;
(11) whether the Debt Securities are to be issuable in the form of
certificated Debt Securities or book-entry Debt Securities;
(12) the portion of principal amount of such Debt Securities that will
be payable upon declaration of acceleration of the maturity date thereof,
if other than the full principal amount thereof;
(13) the currency of denomination of such Debt Securities;
(14) the designation of the currency, currencies or currency units in
which payment of principal of, premium, if any, and interest, if any, on
such Debt Securities will be made;
(15) if payments of principal of, premium, if any, or interest, if
any, on the Debt Securities are to be made in one or more currencies or
currency units other than that or those in which such Debt Securities are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;
(16) the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on such Debt Securities will be
determined, if such amounts may be determined by reference to an index
based on a currency or currencies other than that in which the Debt
Securities are denominated or designated to be payable
7
<PAGE> 11
or by reference to a commodity, commodity index, stock exchange index or
financial index;
(17) the provisions, if any, relating to any security provided for
such Debt Securities;
(18) any addition to or change in the covenants described herein or in
the Indenture with respect to such Debt Securities and any change in the
acceleration provisions described herein or in the Indenture with respect
to such Debt Securities;
(19) any Events of Default with respect to the Debt Securities, if not
otherwise set forth under "-- Events of Default" below;
(20) the terms and conditions, if any, upon which the Debt Securities
shall be exchanged for or converted into common stock or preferred stock;
(21) the terms and conditions, if any, upon which the Debt Securities
and any guarantees thereof shall be subordinated in right of payment to
other indebtedness of the Company;
(22) the form and terms of any guarantee of the Debt Securities;
(23) any other terms of such Debt Securities which may modify or
delete any provision of the Indenture insofar as it applies to such series;
and
(24) any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the Debt Securities.
We may issue Debt Securities that provide for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to the terms of the Indenture ("Discount
Securities"). If we issue Discount Securities, then the federal income tax
considerations and other special considerations that will apply to such Discount
Securities will be described in the applicable prospectus supplement.
We may issue Debt Securities in bearer form, with or without coupons. If we
issue Debt Securities in bearer form, then the federal income tax considerations
and other special considerations that will apply to bearer securities will be
described in the applicable prospectus supplement.
If the purchase price of any of the Debt Securities is denominated in a foreign
currency or currencies or a foreign currency unit or units, or if the principal
of and any premium and interest, if any, on any series or Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable prospectus supplement.
EXCHANGE AND/OR CONVERSION RIGHTS
If we issue Debt Securities of a series that may be exchanged for or converted
into shares of Common Stock or Preferred Stock, we will set forth in the
prospectus supplement relating to such Debt Securities the terms of exchange or
conversion.
8
<PAGE> 12
TRANSFER AND EXCHANGE
We may issue Debt Securities that will be represented by either:
- "book-entry securities," which means that there will be one or more
global securities registered in the name of The Depository Trust Company,
as Depository (the "Depository"), or a nominee of the Depository; or
- "certificated securities," which means that they will be represented by a
certificate issued in definitive registered form.
We will specify in the prospectus supplement applicable to a particular offering
whether the Debt Securities offered will be book-entry or certificated
securities. Except as set forth under "-- Global Debt Securities and Book Entry
System" below, book-entry Debt Securities will not be issuable in certificated
form.
CERTIFICATED DEBT SECURITIES. If you hold certificated Debt Securities, you may
transfer or exchange such debt securities at the Trustee's office or paying
agencies in accordance with the terms of the Indenture. You will not be charged
a service charge for any transfer or exchange of certificated Debt Securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
You may effect the transfer of certificated Debt Securities and of the right to
receive the principal of, premium, if any, and interest, if any, on such
certificated Debt Securities only by surrender of the certificate representing
such certificated Debt Securities and the issuance by the Company or the Trustee
of a new certificate to the new holder.
GLOBAL DEBT SECURITIES AND BOOK ENTRY SYSTEM. The procedures that the
Depository has indicated it intends to follow with respect to book-entry Debt
Securities are set forth below.
Ownership of beneficial interests in book-entry Debt Securities will be limited
to persons that have accounts with the Depository for the related global Debt
Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a global Debt Security, the Depository will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal amounts of the book-entry Debt Securities
represented by such Global Debt Security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such book-entry Debt
Securities. Ownership of book-entry Debt Securities will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by the Depository for the related global Debt Security (with respect
to interests of participants) and on the records of participants (with respect
to interests of persons holding through participants). The laws of some states
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to own, transfer
or pledge beneficial interests in book-entry Debt Securities.
So long as the Depository for a global Debt Security, or its nominee, is the
registered owner of such global Debt Security, the Depository or such nominee,
as the case may be, will be considered the sole owner or holder of the
book-entry Debt Securities represented by such global Debt Security for all
purposes under the Indenture. Except as set forth below, beneficial owners of
book-entry Debt Securities will not be entitled to have such securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing such securities and
will not be considered the owners or holders thereof under the Indenture.
Accordingly, each person
9
<PAGE> 13
beneficially owning book-entry Debt Securities must rely on the procedures of
the Depository for the related global Debt Security 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 the Indenture.
We understand, however, that under existing industry practice, the Depository
will authorize the persons on whose behalf it holds a global Debt Security to
exercise certain rights of holders of Debt Securities, and the Indenture
provides that we, the Guarantors, if any, the Trustee and their respective
agents will treat as the holder of a Debt Security the persons specified in a
written statement of the Depository with respect to such global Debt Security
for purposes of obtaining any consents or directions required to be given by
holders of the Debt Securities pursuant to the Indenture.
Payments of principal of, premium, if any, and interest on book-entry Debt
Securities will be made to the Depository or its nominee, as the case may be, as
the registered holder of the related global Debt Security. We, the Guarantors,
if any, the Trustee and any other agent acting for us and any agent of the
Trustee will not have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
We expect that the Depository, upon receipt of any payment of principal of,
premium, if any, or interest, if any, on a global Debt Security, will
immediately credit participants' accounts with payments in amounts proportionate
to the respective amounts of book-entry Debt Securities held by each such
participant as shown on the records of such Depository. We also expect that
payments by participants to owners of beneficial interests in Book-Entry Debt
Securities held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
If the Depository is at any time unwilling or unable to continue as Depository
or ceases to be a clearing agency registered under the Securities Exchange Act
of 1934, and we do not appoint a successor Depository registered as a clearing
agency under the Exchange Act within 90 days, we will issue certificated Debt
Securities in exchange for each global Debt Security. In addition, we may at any
time and in our sole discretion determine not to have the book-entry Debt
Securities of any series represented by one or more global Debt Securities and,
in such event, will issue certificated Debt Securities in exchange for the
global Debt Securities of such series. Global Debt Securities will also be
exchangeable by the holders for certificated Debt Securities if an Event of
Default (see "Events of Default" below) with respect to the book-entry Debt
Securities represented by such global Debt Securities has occurred and is
continuing. Any certificated Debt Securities issued in exchange for a global
Debt Security will be registered in such name or names as the Depository shall
instruct the Trustee. We expect that such instructions will be based upon
directions received by the Depository from participants with respect to
ownership of book-entry Debt Securities relating to such global Debt Security.
We obtained the foregoing information in this section concerning the Depository
and the Depository's book-entry system from sources we believe to be reliable,
but we do not take any responsibility for the accuracy of such information.
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NO PROTECTION IN THE EVENT OF CHANGE OF CONTROL
Other than as described in the applicable prospectus supplement, the Indenture
does not have any covenants or other provisions providing for a put or increased
interest or otherwise that would afford holders of Debt Securities additional
protection in the event of a recapitalization transaction, a change of control
of the Company or a highly leveraged transaction.
COVENANTS
Unless otherwise indicated in this prospectus or a prospectus supplement, the
Debt Securities will not have the benefit of any covenants that limit or
restrict our business or operations, the pledging of our assets or the
incurrence by us of indebtedness. We will describe in the applicable prospectus
supplement any material covenants in respect of a series of Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may consolidate with or merge with or into, or convey, transfer or lease all
or substantially all of our properties and assets if:
(i) we are the surviving corporation or, if we are not the surviving
corporation, the successor person is a corporation, partnership, trust or
other entity organized and validly existing under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes
our obligations under the Debt Securities and under the Indenture;
(ii) immediately prior to and after giving effect to the transaction,
no Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing under the Indenture; and
(iii) certain other conditions set forth in the Indenture are met.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, the
following will be Events of Default under the Indenture with respect to Debt
Securities of any series:
(i) our failure to pay any interest on any Debt Security of that
series when it becomes due and payable, and continuance of such failure to
pay for a period of 30 days (but not if we deposit the entire amount of
such payment with the Trustee or with a paying agent prior to the
expiration of such period of 30 days);
(ii) our failure to pay principal of or premium, if any, on any Debt
Security of that series when such payment becomes due and payable, at
maturity, upon redemption or otherwise;
(iii) our failure to deposit any sinking fund payment, when and as due
in respect of any Debt Security of that series;
(iv) our failure to perform or our breach of any of our other
covenants or warranties contained in the Indenture (but not if such
covenant or warranty is solely for the benefit of another series of Debt
Securities), if our failure continues uncured for a period of 30 days after
we receive written notice from the Trustee or we and the Trustee receive
written notice from the holders of at least 25% in aggregate principal
amount of the outstanding Debt Securities of that series as provided in the
Indenture;
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(v) certain events of bankruptcy, insolvency or reorganization with
respect to us and the Guarantors, if any; and
(vi) any other Event of Default provided with respect to Debt
Securities of that series that is described in the prospectus supplement
accompanying this prospectus.
An Event of Default with respect to a particular series of Debt Securities,
other than certain events in bankruptcy, insolvency or reorganization with
respect to such Debt Securities, will not necessarily constitute an Event of
Default with respect to any other series of Debt Securities. An Event of Default
with respect to Debt Securities, however, may constitute an event of default
under our bank credit agreements in existence from time to time. In addition,
the occurrence of certain Events of Default or an acceleration of payment
obligations under the Indenture may constitute an event of default under certain
of our other indebtedness and/or our preferred stock outstanding from time to
time.
If an Event of Default with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, then the Trustee or the holders of at
least 25% in principal amount of the outstanding Debt Securities of that series
may, by a notice in writing to us (and to the Trustee if given by the holders),
declare the principal of and accrued but unpaid interest, if any, on all Debt
Securities of that series to be due and payable immediately. If the Debt
Securities of that series are Discount Securities, then the terms of that series
will specify the portion of the principal amount that will be due and payable
upon such declaration. In the case of an Event of Default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such
specified amount) of and accrued and unpaid interest, if any, on all outstanding
Debt Securities will become immediately due and payable without any declaration
or other act on the part of the Trustee or any holder of outstanding Debt
Securities.
At any time after the Trustee or the holders have made a declaration of
acceleration with respect to Debt Securities of any series, but before the
Trustee has obtained a judgment or decree for payment of the money due, the
holders of a majority in principal amount of the outstanding Debt Securities of
that series may rescind and annul such acceleration if:
- we have paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Debt Securities of that
series,
(ii) the principal of any Debt Securities of that series which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Debt Securities,
(iii) to the extent that payment of such interest is lawful, interest
upon any overdue principal and overdue interest at the rate or rates
prescribed therefor in such Debt Securities, and
(iv) all sums paid or advanced by the Trustee and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
- we have cured or obtained waivers with respect to all Events of Default,
other than the non-payment of accelerated principal and interest, if any,
with respect to Debt Securities of that series.
For information as to waiver of defaults, see the discussion set forth below
under "-- Modification and Waiver." The prospectus supplement relating to any
series of Debt Securities that are Discount Securities will set forth the
particular provisions relating to
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acceleration of a portion of the principal amount of such Discount Securities
upon the occurrence of an Event of Default.
The Indenture provides that the Trustee will be under no obligation to exercise
any of its rights or powers under the Indenture at the request of any holder of
outstanding Debt Securities unless the Trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain rights of the
Trustee, the holders of a majority in principal amount of the outstanding Debt
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 with respect to the Debt
Securities of that series.
A holder of Debt Securities of any series will have the right to institute any
proceeding, judicial or otherwise, with respect to the Indenture or for the
appointment of a receiver or trustee, or for any remedy under the Indenture,
only if:
- such holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to Debt Securities of that
series;
- the holders of not less than 25% in principal amount of the outstanding
Debt Securities of that series have also made written request to the
Trustee to institute proceedings in respect of such Event of Default;
- such holder or holders shall have offered to the Trustee reasonable
indemnity;
- the Trustee for 60 days after receipt of such notice, request and offer
of indemnity has failed to institute any such proceedings; and
- the Trustee has not received from the holders of a majority in principal
amount of the outstanding Debt Securities of that series a direction
inconsistent with such request during such 60-day period.
Notwithstanding the foregoing, the holder of any Debt Security will have an
absolute and unconditional right to receive payment of the principal of,
premium, if any, and any interest on such Debt Security on or after the due
dates expressed in such Debt Security and to institute suit for the enforcement
of any such payment.
The Indenture requires us to furnish to the Trustee each year a statement as to
compliance with the Indenture. The Indenture provides that the Trustee may
withhold notice to the holders of Debt Securities of any series of any default
or Event of Default (other than our failure to make payment on any Debt
Securities of such series) with respect to Debt Securities of such series if the
Trustee determines in good faith that withholding such notice is in the interest
of the holders of such Debt Securities.
MODIFICATION AND WAIVER
The Trustee and we may modify or amend the Indenture with the consent of the
holders of at least a majority in principal amount of the outstanding Debt
Securities of each series affected by the proposed modification or amendment.
However, without the consent of the holder of each outstanding Debt Security
affected we cannot make any modification or amendment that would:
- reduce the amount of Debt Securities whose holders must consent to an
amendment or waiver;
- reduce the rate of or change the time for payment of interest (including
default interest) on any Debt Security;
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- reduce the principal of or premium, if any, on or change the fixed
maturity of any Debt Security or reduce the amount of, or postpone the
date fixed for, the payment of any sinking fund or analogous obligation
with respect to any series of Debt Securities;
- reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
- waive a default in the payment of the principal of, premium, if any, or
interest, if any, on any Debt Security (except a rescission of
acceleration of the Debt Securities of any series by the holders of at
least a majority in aggregate principal amount of the then outstanding
Debt Securities of such series and a waiver of the payment default that
resulted from such acceleration);
- make the principal of or premium, if any, or interest, if any, on any
Debt Security payable in currency other than that stated in the Debt
Security;
- make any change to certain provisions of the Indenture protecting the
right of each holder of Debt Securities to receive payment of the
principal of, premium, if any, and interest, if any, on such Debt
Securities on or after the due date thereof or to institute suit for the
enforcement of any such payment and to waivers or amendments; or
- waive a redemption payment with respect to any Debt Security.
The Trustee and we may amend the Indenture without notice to or consent of any
holder of a Debt Security:
- to cure any ambiguity, defect or inconsistency;
- to comply with the Indenture's provisions regarding successor
corporations;
- to comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA;
- to provide for global Debt Securities in addition to or in place of
certificated Debt Securities;
- to add to, change or eliminate any of the provisions of the Indenture in
respect of one or more series of Debt Securities, if such addition,
change or elimination (A) does not (1) apply to any Debt Security of any
series created prior to the execution of such amendment and entitled to
the benefit of such provision, or (2) modify the rights of a holder of
any such Debt Security with respect to such provision, or (B) becomes
effective only when there is no outstanding Debt Security of any series
created prior to such amendment and entitled to the benefit of such
provision;
- to make any change that does not adversely affect in any material respect
the interest of any holder; or
- to establish additional series of Debt Securities as permitted by the
Indenture.
The holders of at least a majority in principal amount of the outstanding Debt
Securities of any series may, on behalf of the holders of all Debt Securities of
that series, waive, insofar as that series is concerned, compliance by us with
provisions of the Indenture other than certain specified provisions. The holders
of a majority in principal amount of the outstanding Debt Securities of any
series may, on behalf of the holders of all the Debt Securities of such series,
waive any past default under the Indenture with respect to such
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series and its consequences, other than a failure to pay the principal of,
premium, if any, or any interest, if any, on any Debt Security of that series or
in respect of a covenant or provision which cannot be modified or amended
without the consent of the holder of each outstanding Debt Security of such
series affected. The holders of a majority in principal amount of the
outstanding Debt Securities of any series may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. The Indenture provides that unless otherwise provided by the
terms of the applicable series of Debt Securities, if we take certain actions,
we will be discharged from most of our obligations in respect of the Debt
Securities of any series. To obtain this discharge we will be required to:
- deposit with the Trustee, in trust, money and/or U.S. Government
Obligations (as defined below) that, through the payment of interest and
principal in respect thereof in accordance with their terms, will provide
money in an amount sufficient in the opinion of a nationally recognized
firm of independent public accountants to pay and discharge each
installment of principal, premium, if any, and interest, if any, on and
any mandatory sinking fund payments in respect of the Debt Securities of
such series on the stated maturity of such payments in accordance with
the terms of the Indenture and such Debt Securities (in the case of Debt
Securities denominated in a single currency other than U.S. Dollars,
instead of U.S. Government Obligations we will be required to deposit
Foreign Government Obligations (as defined below);
- deliver to the Trustee an opinion of counsel stating that (i) we have
received from, or the United States Internal Revenue Service has
published a ruling or, (ii) since the date of execution of the Indenture,
there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred; and
- satisfy certain other conditions specified in the Indenture.
Despite the above actions, we will not be discharged from the following
obligations:
- to register the transfer or exchange of Debt Securities of such series;
- to replace stolen, lost, or mutilated Debt Securities of such series;
- to maintain paying agencies; and
- to comply with certain other provisions relating to the treatment of
funds held by paying agents.
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, unless otherwise
provided by the terms of the applicable series of Debt Securities, upon
compliance with certain conditions, the Company may omit to comply with the
restrictive covenants, if any, set forth in the Indenture, as well as any
additional covenants or other provisions which may be set forth in the
applicable prospectus supplement, and any omission to comply with
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such covenants will not constitute a default or an Event of Default with respect
to the Debt Securities of such series ("covenant defeasance"). These conditions
include:
- the deposit with the trustee of money and/or U.S. Government Obligations,
that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide money in an amount sufficient
in the opinion of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal of,
premium, if any, and interest, if any, on and any mandatory sinking fund
payments in respect of the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indenture
and such Debt Securities (in the case of Debt Securities denominated in a
single currency other than U.S. Dollars, instead of U.S. Government
Obligations we will be required to deposit Foreign Government Obligations
(as defined below);
- the delivery to the Trustee of an opinion of counsel to the effect that
the holders of the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such deposit and related covenant defeasance and will be
subject to United States federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and related covenant defeasance had not occurred; and
- certain other conditions specified in the Indenture.
COVENANT DEFEASANCE AND EVENTS OF DEFAULT. In the event that we exercise our
option to effect covenant defeasance with respect to any series of Debt
Securities, the amount of money and/or U.S. Government Obligations or Foreign
Government Obligations on deposit with the Trustee will be sufficient to pay
amounts due on the Debt Securities of such series at the time of their stated
maturity. If the Debt Securities of such series are subsequently declared due
and payable because of the occurrence of any Event of Default, the amount of
money and/or U.S. Government Obligations or Foreign Obligation on deposit with
the Trustee may not be sufficient to pay amounts due on the Debt Securities of
such series at the time of the acceleration resulting from such Event of
Default. However, if the Event of Default relates to a covenant from which we
have not been discharged, we will remain liable to make the additional payments.
"U.S. Government Obligations" means securities which are (i) direct obligations
of The United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of The United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case of (i) and
(ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
"Foreign Government Obligations" means, with respect to Debt Securities of any
series that are denominated in a currency other than U.S. Dollars, (i) direct
obligations of the government that issued or caused to be issued such currency
for the payment of which obligations its full faith and credit is pledged or
(ii) obligations of a person controlled or
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supervised by or acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under clauses (i) or (ii),
are not callable or redeemable at the option of the issuer thereof.
GUARANTEES
Our payment obligation under any series of Debt Securities may be guaranteed by
one or more Guarantors. The terms of any such guarantee will be set forth in the
applicable prospectus supplement.
REGARDING THE TRUSTEE
The Trustee with respect to any series of Debt Securities will be identified in
the prospectus supplement relating to such Debt Securities. The Indenture and
provisions of the TIA incorporated by reference therein contain certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim, as security or otherwise. The
Trustee and its affiliates may engage in, and will be permitted to continue to
engage in, other transactions with the Company and its affiliates, provided,
however, that if it acquires any conflicting interest (as defined in the TIA),
it must eliminate such conflict or resign.
The TIA and the Indenture provide that in case an Event of Default shall occur
(and be continuing), the Trustee will be required, in the exercise of its rights
and powers, to use the degree of care and skill of a prudent man in the conduct
of his own affairs. Subject to such provision, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any of the holders of the Debt Securities issued thereunder, unless
they have offered to the Trustee indemnity satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The Company's authorized Preferred Stock consists of 12,000,000 shares, none of
which are currently issued and outstanding.
Under Delaware law and our Certificate of Incorporation, we may issue shares of
Preferred Stock from time to time, in one or more classes or series, as
authorized by the Board of Directors, without further approval by the
stockholders. The Preferred Stock we may create and issue from time to time:
- may have such voting power, full or limited, or may be without such
voting powers;
- may be subject to redemption at such time or times and at such prices;
- may be entitled to receive dividends (which may be cumulative or
noncumulative) at such rate or rates, on such conditions, and at such
times, and payable in preference to or in such relation to, the dividends
payable on any other class or classes or series of stock;
- may have such rights upon the dissolution of, or upon the distribution of
the assets of, the Company;
- may be convertible into, or exchangeable for, shares of any other class
or classes of stock of the Company, at such price or prices or at such
rates of exchange, and with such adjustments; and
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- shall have such other relative, participating, optional or special
rights, and preferences, designations, qualifications, limitations or
restrictions thereof;
all as will be stated and expressed in the resolution or resolutions adopted by
the Board of Directors providing for the issuance of such Preferred Stock.
The Board of Directors may authorize the issuance of shares of Preferred Stock
with terms and conditions which could have the effect of discouraging a takeover
or other transaction which holders of some, or a majority, of such shares might
believe to be in their best interests or in which holders of some, or a
majority, of such shares might receive a premium for their shares over the
then-market price of such shares.
The holders of shares of Preferred Stock will have no preemptive rights or
cumulative voting rights. In addition to specific prohibitions set forth in our
Certificate of Incorporation, under Delaware law holders of Preferred Stock will
be entitled to vote as a class upon any proposed amendment, whether or not
entitled to vote thereon by our Certificate of Incorporation, if such amendment
would increase or decrease the par value of the shares of such class, or alter
or change the powers, preferences or special rights of the shares of such class
so as to affect them adversely.
If we make an offering of shares of Preferred Stock under this prospectus, the
shares offered will, when issued, be fully paid and nonassessable and will not
have, or be subject to, any preemptive or similar rights.
If we make an offering of Preferred Stock under this prospectus, then we will
describe the specific terms of the class or series of Preferred Stock being
offered in the prospectus supplement relating to that offering, including:
(1) the title and stated value of such Preferred Stock;
(2) the number of shares of such Preferred Stock offered, the
liquidation preference per share and the purchase price of such Preferred
Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) whether dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which dividends on such Preferred Stock shall
accumulate;
(5) the procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) the provisions for a sinking fund, if any, for such Preferred
Stock;
(7) the provisions for redemption, if applicable, of such Preferred
Stock;
(8) any listing of such Preferred Stock on any securities exchange or
market;
(9) the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock, including the conversion price
(or manner of calculation thereof) and conversion period;
(10) the terms and conditions, if applicable, upon which Preferred
Stock will be exchangeable into Debt Securities of the Company, including
the exchange price (or manner of calculation thereof) and exchange period;
(11) voting rights, if any, of such Preferred Stock;
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(12) whether interests in such Preferred Stock will be represented by
depositary shares;
(13) a discussion of any material and/or special United States federal
income tax considerations applicable to such Preferred Stock;
(14) the relative ranking and preferences of such Preferred Stock as
to dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(15) any limitations on issuance of any class or series of Preferred
Stock ranking senior to or on a parity with such series of Preferred Stock
as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company; and
(16) any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
Unless we otherwise specify in the prospectus supplement, the Preferred Stock
will, with respect to dividend rights and rights upon liquidation, dissolution
or winding up of the Company rank:
(i) senior to all classes or series of Common Stock, and to all equity
securities issued by the Company the terms of which specifically provide
that such equity securities rank junior to such Preferred Stock with
respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company;
(ii) on a parity with all equity securities issued by the Company that
do not rank senior or junior to the Preferred Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of
the Company; and
(iii) junior to all equity securities issued by the Company the terms
of which do not specifically provide that such equity securities rank on a
parity with or junior to the Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Company
(including any entity with which the Company may be merged or consolidated
or to which all or substantially all the assets of the Company may be
transferred or which transfers all or substantially all of the assets of
the Company).
As used for these purposes, the term "equity securities" does not include
convertible debt securities.
DESCRIPTION OF COMMON STOCK
GENERAL
The Company's authorized Common Stock consists of 600,000,000 shares, of which
184,369,963 were issued and outstanding as of December 7, 1998.
Holders of Common Stock are entitled to one vote per share on all matters on
which the holders of Common Stock are entitled to vote. Because holders of
Common Stock do not have cumulative voting rights and the Company has a
classified Board of Directors, the holders of a majority of the shares of Common
Stock voting for the election of directors can elect all of the members of the
Board of Directors standing for election at any particular meeting. The Common
Stock is not redeemable and has no conversion or preemptive rights. All of the
outstanding shares of Common Stock are fully paid and nonassessable. In the
event of the liquidation or dissolution of the Company, subject to the
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rights of the holders of any outstanding shares of Preferred Stock, the holders
of Common Stock are entitled to share pro rata in any balance of the corporate
assets available for distribution to them. The Company may pay dividends if,
when and as declared by the Board of Directors from funds legally available
therefor, subject to the dividend provisions of any outstanding shares of
Preferred Stock and restrictions set forth in the Company's debt instruments.
SPECIAL PROVISIONS OF THE CERTIFICATE OF INCORPORATION, BYLAWS AND DELAWARE LAW
Our Certificate of Incorporation provides that our directors will not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability:
(i) for any breach of the director's duty of loyalty to the Company or
its stockholders;
(ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
(iii) in respect of certain unlawful dividend payments or stock
redemptions or repurchases as provided in Section 174 of the Delaware
General Corporation Law; or
(iv) for any transaction from which the director derived an improper
personal benefit.
The effect of these provisions is to eliminate the rights of the Company and its
stockholders (through stockholders' derivative suits on behalf of the Company)
to recover monetary damages against a director for breach of fiduciary duty as a
director (including breaches resulting from grossly negligent behavior), except
in the situations described above.
Our Bylaws provide that we will indemnify our directors and officers to the
fullest extent permissible under Delaware law. These indemnification provisions
require us to indemnify our directors and officers against certain liabilities
and expenses to which they may become subject by reason of their service as
directors or officers of the Company. The provisions also set forth certain
procedures, including the advancement of expenses that apply in the event of a
claim for indemnification.
Section 203 of the Delaware General Corporation Law ("Section 203") generally
provides that a person who, together with affiliates and associates owns, or
within three years did own, 15% or more of the outstanding voting stock of a
corporation (an "Interested Stockholder") but less than 85% of such stock may
not engage in certain business combinations with the corporation for a period of
three years after the date on which the person became an Interested Stockholder
unless (i) prior to such date, the corporation's board of directors approved
either the business combination or the transaction in which the stockholder
became an Interested Stockholder or (ii) subsequent to such date, the business
combination is approved by the corporation's board of directors and authorized
at a stockholders' meeting by a vote of at least two-thirds of the corporation's
outstanding voting stock not owned by the Interested Stockholder. Section 203
defines the term "business combination" to encompass a wide variety of
transactions with or caused by an Interested Stockholder, including mergers,
asset sales, and other transactions in which the Interested Stockholder receive
a benefit on other than a pro rata basis with other stockholders. The Company's
stockholders, by adopting an amendment to the Certificate of Incorporation, may
elect not to be governed by Section 203 which election would be
20
<PAGE> 24
effective twelve months after such adoption. Neither our Certificate of
Incorporation nor our Bylaws exclude the Company from the restrictions imposed
by Section 203.
Our Certificate of Incorporation classifies the Board of Directors into three
classes with staggered terms. At each annual meeting, the number of directors
equal to the number of directors in the class whose terms expire at the time of
such meeting is elected to hold office until the third succeeding annual
meeting. As a result of this classification of directors, no stockholder or
group of stockholders would be able to elect a majority of the Board of
Directors at any single meeting for the election of directors.
Our Bylaws provide that only business or proposals properly brought before an
annual meeting of shareholders may be conducted at such meeting. In order to
bring business or a proposal before an annual meeting, a stockholder is required
to provide written notice to us at least 45 days prior to the annual meeting
which describes the business or proposal to be brought before the annual
meeting, the name and address of the stockholder proposing the business, the
class and number of shares of stock held by such stockholder, and any material
interest of the stockholder in the business to be brought before the meeting. In
addition, our Bylaws provide that in order for a stockholder to nominate a
candidate for election to the Board of Directors, the stockholder must provide
written notice of intent to nominate a candidate at least 45 days prior to the
meeting of stockholders called for the election of directors. Such written
notice is required to contain the name and address of the stockholder, a
representation that the stockholder is a holder of record of the Company's
voting stock and intends to appear in person or by proxy at the meeting to
nominate the persons specified in the notice, such information regarding each
nominee as would have been required to have been included in a proxy statement
filed pursuant to Regulation 14A of the rules and regulations of the SEC under
the Securities Exchange Act of 1934 had proxies been solicited with respect to
such nominee by the Board of Directors, a description of all arrangements or
other understandings among the stockholder and any other person pursuant to
which such nominations are to be made by the stockholder and the written consent
of each nominee to serve as a director of the Company if elected.
Our Bylaws provide for special meetings of stockholders only upon the direction
of the Chairman of the Board of Directors, the President, or a majority of the
Board of Directors. Furthermore, our Certificate of Incorporation prohibits
stockholders from taking action by written consent in lieu of meeting.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is First Union National
Bank of North Carolina.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase Debt Securities (the "Debt Warrants"),
Preferred Stock (the "Preferred Stock Warrants") or Common Stock (the "Common
Stock Warrants" and, collectively with the Debt Warrants and the Preferred Stock
Warrants, the "Warrants"). We may issue Warrants independently or together with
any other securities attached to or separate from such other securities. We will
issue the Warrants under warrant agreements (each a "Warrant Agreement") that we
will enter into with a bank or trust company, as warrant agent (the "Warrant
Agent"). We will provide information
21
<PAGE> 25
about the Warrant Agent in the prospectus supplement relating to the Warrants
being offered pursuant thereto.
DEBT WARRANTS
We will describe in the applicable prospectus supplement the terms of the Debt
Warrants, the Warrant Agreement relating to such Debt Warrants and the Debt
Warrant certificates representing such Debt Warrants, including the following:
(1) the title for such Debt Warrants;
(2) the aggregate number of such Debt Warrants;
(3) the price or prices at which we will issue such Debt Warrants;
(4) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of such Debt Warrants, and the
procedures and conditions relating to the exercise of such Debt Warrants;
(5) the designation and terms of any related Debt Securities that we will
issue with such Debt Warrants, and the number of such Debt Warrants that we
will issue with each such security;
(6) the date, if any, on and after which such Debt Warrants and the related
Debt Securities will be separately transferable;
(7) the principal amount of Debt Securities purchasable upon exercise of
each Debt Warrant, and the price at which such principal amount of Debt
Securities may be purchased upon such exercise;
(8) the date on which such right will expire;
(9) the maximum or minimum number of such Debt Warrants which may be
exercised at any time;
(10) a discussion of the material United States federal income tax
considerations applicable to the exercise of such Debt Warrants; and
(11) any other terms of such Debt Warrants and terms, procedures and
limitations relating to the exercise of such Debt Warrants.
Debt Warrant certificates will be exchangeable for new Debt Warrant certificates
of different denominations, and Debt Warrants may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable prospectus supplement. Prior to the exercise of their Debt Warrants,
holders of Debt Warrants will not have any of the rights of holders of the
securities purchasable upon such exercise and will not be entitled to payments
of principal of (or premium, if any) or interest, if any, on the securities
purchasable upon such exercise.
OTHER WARRANTS
We will describe in the applicable prospectus supplement the terms of Preferred
Stock Warrants or Common Stock Warrants, including the following:
(1) the title of such Warrants;
(2) the securities for which such Warrants are exercisable;
(3) the price or prices at which we will issue such Warrants;
22
<PAGE> 26
(4) the number of such Warrants that we will issue with each share of
Preferred Stock or Common Stock;
(5) any provisions for adjustment of the number or amount of shares of
Preferred Stock or Common Stock receivable upon exercise of such Warrants
or the exercise price of such Warrants;
(6) if applicable, the date on and after which such Warrants and the
related Preferred Stock or Common Stock will be separately transferable;
(7) if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of such Warrants;
(8) any other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Warrants;
(9) the date on which the right to exercise such Warrants shall
commence, and the date on which such right shall expire; and
(10) the maximum or minimum number of such Warrants which may be
exercised at any time.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder of Warrants to purchase for cash such
principal amount of Debt Securities or shares of Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the prospectus supplement relating to the Warrants offered
thereby. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the prospectus supplement relating to the
Warrants offered thereby. After the close of business on the expiration date,
unexercised Warrants will become void.
Warrants may be exercised as set forth in the prospectus supplement relating to
the Warrants offered thereby. Upon receipt of payment and the Warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the Debt Securities or shares of
Preferred Stock or Common Stock purchasable upon such exercise. If less than all
of the Warrants represented by such Warrant certificate are exercised, a new
Warrant certificate will be issued for the remaining Warrants.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby:
- directly to purchasers;
- through agents;
- through dealers;
- through underwriters; or
- through a combination of any of these methods of sale.
23
<PAGE> 27
We and our agents and underwriters may sell the securities being offered hereby
from time to time in one or more transactions:
- at a fixed price or prices, which may be changed;
- at market prices prevailing at the time of sale;
- at prices related to such prevailing market prices; or
- at negotiated prices.
We may solicit directly offers to purchase securities. We may also designate
agents from time to time to solicit offers to purchase securities. Any such
agent, who may be deemed to be an "underwriter" as that term is defined in the
Securities Act, may then resell such securities to the public at varying prices
to be determined by such agent at the time of resale.
If we use underwriters to sell securities, we will enter into an underwriting
agreement with such underwriters at the time of the sale to them, and will set
forth the names of the underwriters the prospectus supplement which will be used
by them together with this prospectus to make resales of the securities to the
public. In connection with the sale of the securities offered hereby, such
underwriters may be deemed to have received compensation from us in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the securities offered hereby for whom they may act as agents.
Underwriters may also sell the securities offered hereby to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Any underwriting compensation paid by us to
underwriters in connection with the offering of the securities offered hereby,
and any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the applicable prospectus
supplement.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with us, to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which they may be required to make in
respect thereof. Underwriters and agents may engage in transactions with, or
perform services for, us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters, dealers, or other persons to solicit offers by certain
institutions to purchase the securities offered hereby pursuant to contracts
providing for payment and delivery on a future date or dates. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (a) the purchase of
the securities offered hereby shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject and (b) if
the securities offered hereby are also being sold to underwriters, we shall have
sold to such underwriters the securities offered hereby not sold for delayed
delivery. The underwriters, dealers and such other persons will not have any
responsibility in respect to the validity or performance of such contracts. The
prospectus supplement relating to such contracts will set forth the price to be
paid for securities pursuant to such contracts, the commissions payable for
solicitation of such contracts and the date or dates in the future for delivery
of such securities pursuant to such contracts.
24
<PAGE> 28
Any underwriter may engage in over-allotment, stabilizing and syndicate short
covering transactions and penalty bids in accordance with Regulation M of the
Securities Exchange Act of 1934. Over-allotment involves sales in excess of the
offering size, which creates a short position. Stabilizing transactions involve
bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Syndicate short covering transactions involve
purchases of securities in the open market after the distribution has been
completed in order to cover syndicate short positions. Penalty bids permit the
underwriters to reclaim selling concessions from dealers when the securities
originally sold by such dealers are purchased in covering transactions to cover
syndicate short positions. These transactions may cause the price of the
Securities sold in an offering to be higher than it would otherwise be. These
transactions, if commenced, may be discontinued by the underwriters at any time.
Each series of Securities will be a new issue with no established trading
market, other than the Common Stock which is listed on the NYSE. Any shares of
Common Stock sold pursuant to a prospectus supplement will be listed on the
NYSE, subject to official notice of issuance. Any underwriters to whom we sell
Securities for public offering and sale may make a market in such Securities,
but such underwriters will not be obligated to do so and may discontinue any
market making at any time without notice. We may elect to list any of the
Securities we may offer from time to time for trading on an exchange or on the
Nasdaq Stock Market, but we are not obligated to do so.
The anticipated date of delivery of the securities offered hereby will be set
forth in the applicable prospectus supplement relating to each offering.
LEGAL MATTERS
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia will pass upon the
validity of the securities offered hereby.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
The financial statements of National Advertising Company as of December 31, 1996
and 1995 and for each of the three years in the period ended December 31, 1996
incorporated by reference in this prospectus, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP (Coopers & Lybrand L.L.P.
prior to its July 1, 1998 merger with Price Waterhouse LLP), independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
The combined financial statements of Vendor, S.A. de C.V. and MM Billboard as of
December 31, 1997 and for the year then ended incorporated in this Prospectus by
reference to Outdoor Systems, Inc.'s Current Report on Form 8-K dated July 16,
1998, as amended September 11, 1998, have been so incorporated in reliance on
the report of PricewaterhouseCoopers, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
25
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the fees and expenses, other than underwriting
discounts and commissions, payable or reimbursable by the Company in connection
with the issuance and distribution of the securities registered hereby. All such
expenses, other than the SEC registration fee, are estimated.
<TABLE>
<S> <C>
SEC registration fee....................................... $ 278,000
Printing and engraving expenses............................ 150,000
Legal fees and expenses.................................... 300,000
Accounting fees and expenses............................... 150,000
Rating agency fees......................................... 150,000
Transfer agent fees and expenses........................... 20,000
Fees and expenses of the Trustee and Depositary............ 25,000
Miscellaneous.............................................. 27,000
----------
Total............................................ $1,100,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware Law"),
Article VII of the Registrant's Fourth Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation"), and Article VI of the
Company's Amended and Restated Bylaws (the "Bylaws") provide for indemnification
of the Registrant's directors and officers to the maximum extent provided by
Delaware law, which may include liabilities under the Securities Act of 1933, as
amended (the "Securities Act").
As permitted by Section 102(b) of the Delaware Law, the Certificate of
Incorporation provides that directors of the Company shall have no personal
liability to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except (i) for any breach of a director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or knowing violations of law,
(iii) under Section 174 of the Delaware Law, or (iv) for any transaction from
which a director derived an improper personal benefit.
The Company maintains directors' and officers' liability insurance.
II-1
<PAGE> 30
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement.*
3.1 -- Fourth Amended and Restated Certificate of Incorporation
(filed as Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed on June 4, 1997 (File No. 0-28256) and
incorporated by reference).
3.2 -- Amended and Restated Bylaws (filed as Exhibit 3.2 to
Amendment No. 1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-1582) and incorporated herein by
reference).
4.1 -- Form of Indenture.
4.2 -- Specimen Common Stock Certificate of the Registrant (filed
as Exhibit 4.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form S-1 (File No. 333-1582) and
incorporated herein by reference).
4.3 -- Certificate of Designation.*
4.4 -- Form of Preferred Stock Certificate.*
4.5 -- Form of Warrant Agreement.*
4.6 -- Form of Warrant.*
5.1 -- Opinion of Powell, Goldstein, Frazer & Murphy LLP.
12.1 -- Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
12.2 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Powell, Goldstein, Frazer & Murphy LLP (included
in Exhibit 5.1).
23.2 -- Consent of Deloitte & Touche LLP, independent auditors.
23.3 -- Consent of PricewaterhouseCoopers LLP, independent auditors.
23.4 -- Consent of PricewaterhouseCoopers, independent auditors.
24.1 -- Powers of Attorney (included on signature pages).
25.1 -- Statement of Eligibility of Trustee on Form T-1.**
</TABLE>
- -------------------------
* To be filed by amendment or by a Current Report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
ITEM 17. UNDERTAKINGS
(a) 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 in 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; notwithstanding the foregoing, any
increase or decrease in volume of securities
II-2
<PAGE> 31
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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) The undersigned registrant hereby undertakes to file an application
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-3
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
OUTDOOR SYSTEMS, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
II-4
<PAGE> 33
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal December 7, 1998
- --------------------------------------- Executive Officer) and
Arturo R. Moreno Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and December 7, 1998
- --------------------------------------- Chief Financial Officer
Bill M. Beverage (Principal Accounting and
Financial Officer)
/s/ BRIAN J. O'CONNOR Director December 7, 1998
- ---------------------------------------
Brian J. O'Connor
/s/ STEPHEN F. BUTTERFIELD Director December 7, 1998
- ---------------------------------------
Stephen F. Butterfield
</TABLE>
II-5
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
OUTDOOR SYSTEMS PAINTING, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal December 7, 1998
- --------------------------------------- Executive Officer) and
Arturo R. Moreno Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and December 7, 1998
- --------------------------------------- Chief Financial Officer
Bill M. Beverage (Principal Accounting and
Financial Officer)
</TABLE>
II-6
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
ATLANTIC PROSPECT, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal December 7, 1998
- --------------------------------------- Executive Officer) and
Arturo R. Moreno Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary and Treasurer December 7, 1998
- --------------------------------------- (Principal Accounting and
Bill M. Beverage Financial Officer)
</TABLE>
II-7
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
OS FLORIDA, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM S. LEVINE President (Principal December 7, 1998
- --------------------------------------- Executive Officer) and
William S. Levine Director
/s/ ARTURO R. MORENO Director December 7, 1998
- ---------------------------------------
Arturo R. Moreno
/s/ BILL M. BEVERAGE Secretary and Treasurer December 7, 1998
- --------------------------------------- (Principal Accounting and
Bill M. Beverage Financial Officer)
</TABLE>
II-8
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
PREMIER SPORTS MARKETING, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
II-9
<PAGE> 38
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President, Chief Executive December 7, 1998
- --------------------------------------- Officer (Principal Executive
Arturo R. Moreno Officer) and Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and December 7, 1998
- --------------------------------------- Chief Financial Officer
Bill M. Beverage (Principal Accounting and
Financial Officer)
/s/ BRIAN J. O'CONNOR Director December 7, 1998
- ---------------------------------------
Brian J. O'Connor
/s/ STEPHEN F. BUTTERFIELD Director December 7, 1998
- ---------------------------------------
Stephen F. Butterfield
</TABLE>
II-10
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
SAN FRANCISCO WALLS, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President, Chief Executive December 7, 1998
- --------------------------------------- Officer (Principal Executive
Arturo R. Moreno Officer) and Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary and Treasurer December 7, 1998
- --------------------------------------- (Principal Accounting and
Bill M. Beverage Financial Officer)
</TABLE>
II-11
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
NEW YORK SUBWAYS ADVERTISING CO., INC.
By: /s/ WILLIAM S. LEVINE
--------------------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal Executive December 7, 1998
- ------------------------------ Officer) and Director
Arturo R. Moreno
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- ------------------------------ Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and Chief December 7, 1998
- ------------------------------ Financial Officer (Principal
Bill M. Beverage Accounting and Financial
Officer)
</TABLE>
II-12
<PAGE> 41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
OS BUS, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President and Chief Executive December 7, 1998
- ------------------------------ Officer (Principal Executive
Arturo R. Moreno Officer)
/s/ WILLIAM S. LEVINE Chairman of the Board and sole December 7, 1998
- ------------------------------ Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and Chief December 7, 1998
- ------------------------------ Financial Officer (Principal
Bill M. Beverage Accounting and Financial
Officer)
</TABLE>
II-13
<PAGE> 42
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
OUTDOOR SYSTEMS (NEW YORK), INC.
By: /s/ WILLIAM S. LEVINE
--------------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President and Chief Executive December 7, 1998
- ------------------------------ Officer (Principal Executive
Arturo R. Moreno Officer)
/s/ WILLIAM S. LEVINE Chairman of the Board and sole December 7, 1998
- ------------------------------ Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary and Treasurer December 7, 1998
- ------------------------------ (Principal Accounting and
Bill M. Beverage Financial Officer)
</TABLE>
II-14
<PAGE> 43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
PACIFIC CONNECTION, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal December 7, 1998
- --------------------------------------- Executive Officer)
Arturo R. Moreno
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer December 7, 1998
- --------------------------------------- (Principal Accounting and
Bill M. Beverage Financial Officer) and
Director
</TABLE>
II-15
<PAGE> 44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
NATIONAL ADVERTISING COMPANY
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President, Chief Executive December 7, 1998
- --------------------------------------- Officer (Principal Executive
Arturo R. Moreno Officer) and Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary and Treasurer December 7, 1998
- --------------------------------------- (Principal Accounting and
Bill M. Beverage Financial Officer)
/s/ BRIAN J. O'CONNOR Director December 7, 1998
- ---------------------------------------
Brian J. O'Connor
</TABLE>
II-16
<PAGE> 45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
SALM ENTERPRISES, INC.
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO President (Principal December 7, 1998
- --------------------------------------- Executive Officer) and
Arturo R. Moreno Director
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director
William S. Levine
/s/ BILL M. BEVERAGE Secretary, Treasurer and December 7, 1998
- --------------------------------------- Chief Financial Officer
Bill M. Beverage (Principal Accounting and
Financial Officer)
</TABLE>
II-17
<PAGE> 46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 7th day of
December, 1998.
ATLANTA BUS SHELTERS
BY: OUTDOOR SYSTEMS, INC., its General
Partner
By: /s/ WILLIAM S. LEVINE
-----------------------------------
William S. Levine
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints WILLIAM S. LEVINE and BILL M. BEVERAGE, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, to sign any related registration
statements pursuant to Rule 462(b) of the Securities Act of 1933, and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, for their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
II-18
<PAGE> 47
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on behalf of the Registrants
and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ARTURO R. MORENO Director of Outdoor Systems, December 7, 1998
- --------------------------------------- Inc., General Partner
Arturo R. Moreno
/s/ WILLIAM S. LEVINE Chairman of the Board and December 7, 1998
- --------------------------------------- Director of Outdoor Systems,
William S. Levine Inc., General Partner
/s/ BRIAN J. O'CONNOR Director of Outdoor Systems, December 7, 1998
- --------------------------------------- Inc., General Partner
Brian J. O'Connor
/s/ STEPHEN F. BUTTERFIELD Director of Outdoor Systems, December 7, 1998
- --------------------------------------- Inc., General Partner
Stephen F. Butterfield
</TABLE>
II-19
<PAGE> 48
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement.*
3.1 -- Fourth Amended and Restated Certificate of Incorporation
(filed as Exhibit 99.2 to the Registrant's Current Report on
Form 8-K filed on June 4, 1997 (File No. 0-28256) and
incorporated by reference).
3.2 -- Amended and Restated Bylaws (filed as Exhibit 3.2 to
Amendment No. 1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-1582) and incorporated herein by
reference).
4.1 -- Form of Indenture.
4.2 -- Specimen Common Stock Certificate of the Registrant (filed
as Exhibit 4.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form S-1 (File No. 333-1582) and
incorporated herein by reference).
4.3 -- Certificate of Designation.*
4.4 -- Form of Preferred Stock Certificate.*
4.5 -- Form of Warrant Agreement.*
4.6 -- Form of Warrant.*
5.1 -- Opinion of Powell, Goldstein, Frazer & Murphy LLP.
12.1 -- Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
12.2 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Powell, Goldstein, Frazer & Murphy LLP (included
in Exhibit 5.1).
23.2 -- Consent of Deloitte & Touche LLP, independent auditors.
23.3 -- Consent of PricewaterhouseCoopers LLP, independent auditors.
23.4 -- Consent of PricewaterhouseCoopers, independent auditors.
24.1 -- Powers of Attorney (included on signature pages).
25.1 -- Statement of Eligibility of Trustee on Form T-1.**
</TABLE>
- -------------------------
* To be filed by amendment or by a Current Report on Form 8-K pursuant to
Regulation S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
<PAGE> 1
EXHIBIT 4.1
--------------------------------------------------------------
OUTDOOR SYSTEMS, INC.
as Issuer
-----------------------------
FORM OF
INDENTURE
Dated as of , 1998
------------
----------------------------
------------------
as Trustee
---------------------------------------------------------------
A-(i)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE........................................................
Section 1.1. Definitions.....................................................................................
Section 1.2. Other Definitions...............................................................................
Section 1.3. Incorporation by Reference of Trust Indenture Act...............................................
Section 1.4. Rules of Construction...........................................................................
ARTICLE II. THE SECURITIES...................................................................................
Section 2.1. Issuable in Series..............................................................................
Section 2.2. Establishment of Terms of Series of Securities..................................................
Section 2.3. Execution and Authentication....................................................................
Section 2.4. Registrar and Paying Agent......................................................................
Section 2.5. Paying Agent to Hold Money in Trust.............................................................
Section 2.6. Securityholder Lists............................................................................
Section 2.7. Transfer and Exchange...........................................................................
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities................................................
Section 2.9. Outstanding Securities..........................................................................
Section 2.10. Treasury Securities............................................................................
Section 2.11. Temporary Securities...........................................................................
Section 2.12. Cancellation...................................................................................
Section 2.13. Defaulted Interest.............................................................................
Section 2.14. Global Securities..............................................................................
Section 2.15. CUSIP Numbers..................................................................................
ARTICLE III. REDEMPTION......................................................................................
Section 3.1. Notice to Trustee...............................................................................
Section 3.2. Selection of Securities to be Redeemed..........................................................
Section 3.3. Notice of Redemption............................................................................
Section 3.4. Effect of Notice of Redemption..................................................................
Section 3.5. Deposit of Redemption Price.....................................................................
Section 3.6. Securities Redeemed in Part.....................................................................
ARTICLE IV. COVENANTS........................................................................................
Section 4.1. Payment of Principal and Interest...............................................................
Section 4.2. SEC Reports.....................................................................................
Section 4.3. Compliance Certificate..........................................................................
Section 4.4. Stay, Extension and Usury Laws..................................................................
Section 4.5. Corporate Existence.............................................................................
Section 4.6. Taxes...........................................................................................
</TABLE>
A-(ii)
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE V. SUCCESSORS........................................................................................
Section 5.1. When Company May Merge, Etc.....................................................................
Section 5.2. Successor Corporation Substituted...............................................................
ARTICLE VI. DEFAULTS AND REMEDIES............................................................................
Section 6.1. Events of Default...............................................................................
Section 6.2. Acceleration of Maturity; Rescission and Annulment..............................................
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.................................
Section 6.4. Trustee May File Proofs of Claim................................................................
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.....................................
Section 6.6. Application of Money Collected..................................................................
Section 6.7. Limitation on Suits.............................................................................
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest................................
Section 6.9. Restoration of Rights and Remedies..............................................................
Section 6.10. Rights and Remedies Cumulative.................................................................
Section 6.11. Delay or Omission Not Waiver...................................................................
Section 6.12. Control by Holders.............................................................................
Section 6.13. Waiver of Past Defaults........................................................................
Section 6.14. Undertaking for Costs..........................................................................
ARTICLE VII. TRUSTEE.........................................................................................
Section 7.1. Duties of Trustee...............................................................................
Section 7.2. Rights of Trustee...............................................................................
Section 7.3. Individual Rights of Trustee....................................................................
Section 7.4. Trustee's Disclaimer............................................................................
Section 7.5. Notice of Defaults..............................................................................
Section 7.6. Reports by Trustee to Holders...................................................................
Section 7.7. Compensation and Indemnity......................................................................
Section 7.8. Replacement of Trustee..........................................................................
Section 7.9. Successor Trustee by Merger, etc................................................................
Section 7.10. Eligibility; Disqualification..................................................................
Section 7.11. Preferential Collection of Claims Against Company..............................................
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE.........................................................
Section 8.1. Satisfaction and Discharge of Indenture.........................................................
Section 8.2. Application of Trust Funds; Indemnification.....................................................
Section 8.3. Legal Defeasance of Securities of any Series....................................................
Section 8.4. Covenant Defeasance.............................................................................
Section 8.5. Repayment to Company............................................................................
ARTICLE IX. AMENDMENTS AND WAIVERS...........................................................................
Section 9.1. Without Consent of Holders......................................................................
Section 9.2. With Consent of Holders.........................................................................
Section 9.3. Limitations.....................................................................................
Section 9.4. Compliance with Trust Indenture Act.............................................................
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
Section 9.5. Revocation and Effect of Consents...............................................................
Section 9.6. Notation on or Exchange of Securities...........................................................
Section 9.7. Trustee Protected...............................................................................
ARTICLE X. MISCELLANEOUS.....................................................................................
Section 10.1. Trust Indenture Act Controls...................................................................
Section 10.2. Notices........................................................................................
Section 10.3. Communication by Holders with Other Holders....................................................
Section 10.4. Certificate and Opinion as to Conditions Precedent.............................................
Section 10.5. Statements Required in Certificate or Opinion..................................................
Section 10.6. Rules by Trustee and Agents....................................................................
Section 10.7. Legal Holidays.................................................................................
Section 10.8. No Recourse Against Others.....................................................................
Section 10.9. Counterparts...................................................................................
Section 10.10. Governing Laws................................................................................
Section 10.11. No Adverse Interpretation of Other Agreements.................................................
Section 10.12. Successors....................................................................................
Section 10.13. Severability..................................................................................
Section 10.14. Table of Contents, Headings, Etc..............................................................
Section 10.15. Securities in a Foreign Currency or in ECU....................................................
Section 10.16. Judgment Currency.............................................................................
ARTICLE XI. SINKING FUNDS....................................................................................
Section 11.1. Applicability of Article.......................................................................
Section 11.2. Satisfaction of Sinking Fund Payments with Securities..........................................
Section 11.3. Redemption of Securities for Sinking Fund......................................................
</TABLE>
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<PAGE> 5
OUTDOOR SYSTEMS, INC.
Cross-reference Table
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
Section 310(a)(1)........................................................7.10
(a)(2)...................................................................7.10
(a)(3).........................................................Not Applicable
(a)(4).........................................................Not Applicable
(a)(5)...................................................................7.10
(b)........................................................................7.10
Section 311(a)...........................................................7.11
(b)......................................................................7.11
(c)............................................................Not Applicable
Section 312(a)............................................................2.6
(b)......................................................................10.3
(c)......................................................................10.3
Section 313(a)............................................................7.6
(b)(1)....................................................................7.6
(b)(2)....................................................................7.6
(c)(1)....................................................................7.6
(d).......................................................................7.6
Section 314(a)......................................................4.2, 10.5
(b)............................................................Not Applicable
(c)(1)...................................................................10.4
(c)(2)...................................................................10.4
(c)(3).........................................................Not Applicable
(d)............................................................Not Applicable
(e)......................................................................10.5
(f)............................................................Not Applicable
Section 315(a)............................................................7.1
(b).......................................................................7.5
(c).......................................................................7.1
(d).......................................................................7.1
(e)......................................................................6.14
Section 316(a)...........................................................2.10
(a)(1)(A)................................................................6.12
(a)(1)(B)................................................................6.13
(b).......................................................................6.8
Section 317(a)(1).........................................................6.3
(a)(2)....................................................................6.4
(b).......................................................................2.5
Section 318(a)...........................................................10.1
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- ------------
Note: This Cross-reference Table is not part of the Indenture.
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<PAGE> 7
Indenture dated as of ___________, 1998 between Outdoor Systems, Inc.,
a Delaware corporation (the "Company"), and _________________, a
________________, as Trustee ("Trustee").
[The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.]
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities issued under this
Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
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"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate (and delivered
to the Trustee, if appropriate).
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a 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 office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Debt" of any person as of any date means, without duplication, all
indebtedness of such person in respect of borrowed money, including all
interest, fees and expenses owed in respect thereto (whether or not the recourse
of the lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments.
"Default" means any event which is, or with the passage of time or
giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person,
"Depository" as used with respect to the Securities of any Series shall
mean the Depository with respect to the Securities of such Series.
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"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission
of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a Security is
registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"interest" with respect to any Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or otherwise.
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"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer, any Vice-President,
the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary
of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom must be the Company's principal executive officer, principal financial
officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on, and any Additional Amounts in respect
of, the Security.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom any corporate trust matter is referred because
of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments of
the Company of any Series authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
regulation is in effect on the date hereof, or (ii) any group of direct or
indirect Subsidiaries of the Company that, taken together as a group, would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
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"Subsidiary" of any specified person means any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by such person, or
by one or more other Subsidiaries, or by such person and one or more other
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended from time to time, and as in effect on
the date of this Indenture; provided, however, that in the event the TIA is
amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
"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 this Indenture, and thereafter "Trustee" shall mean or include each
person who is then a Trustee hereunder, and if at any time there is more than
one such person, "Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
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Section 1.2. Other Definitions.
DEFINED IN
TERM SECTION
"Bankruptcy Law"...........................................6.1
"Custodian"................................................6.1
"Event of Default".........................................6.1
"Journal"................................................10.15
"Judgment Currency"......................................10.16
"Legal Holiday"...........................................10.7
"Mandatory Sinking Fund Payment" .........................11.1
"Market Exchange Rate" ..................................10.15
"New York Banking Day" ..................................10.16
"Optional Sinking Fund Payment"...........................11.1
"Paying Agent..............................................2.4
"Registrar"................................................2.4
"Required Currency"......................................10.16
"Service Agent"............................................2.4
"Successor Person".........................................5.1
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Securities means the Company and any
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
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Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(c) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles in effect as of the
time when and for the period as to which such accounting principles are
to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the
plural include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may
be set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1 and either as to such Securities within the Series or as to the
Series generally in the case of Subsections 2.2.2 through 2.2.22) by a Board
Resolution, a supplemental indenture or an Officers' Certificate pursuant to
authority granted under a Board Resolution:
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<PAGE> 14
2.2.1. the title of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
2.2.2. the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the Series pursuant
to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of
the Series is payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including, but
not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
2.2.6. the place or places where the principal of and interest, if any,
on the Securities of the Series shall be payable, or the method of such payment,
if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
2.2.9. the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
2.2.11. the forms of the Securities of the Series in bearer or fully
registered form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities);
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<PAGE> 15
2.2.12. if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to, the
ECU, and if such currency of denomination is a composite currency other than the
ECU, the agency or organization, if any, responsible for overseeing such
composite currency;
2.2.14. the designation of the currency, currencies or currency units
in which payment of the principal of and interest, if any, on the Securities of
the Series will be made;
2.2.15. if payments of principal of or interest, if any, on the
Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the
manner in which the exchange rate with respect to such payments will be
determined;
2.2.16. the manner in which the amounts of payment of principal of or
interest, if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a currency or
currencies or by reference to a commodity, commodity index, stock exchange index
or financial index;
2.2.17. the provisions, if any, relating to any security provided for
the Securities of the Series;
2.2.18. any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to or change in the covenants set forth in
Articles IV or V which applies to Securities of the Series;
2.2.20. any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
2.2.21. any depositories, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein; and
2.2.22. the terms and conditions, if any, upon which the Securities and
any guarantees thereof shall be subordinated in right of payment to other
indebtedness of the Company or any guarantor; and
2.2.23. the form and terms of any guarantee of the Securities.
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<PAGE> 16
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 2.3. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers' Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Trustee in
good faith by its board of directors or trustees, executive committee or a trust
committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to Section
2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment ("Paying Agent"), where Securities of such Series may be
surrendered for registration of transfer or exchange ("Registrar") and where
notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served ("Service Agent"). The Registrar shall
keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the
name and address, and any change in the name or address, of each Registrar,
Paying Agent or Service Agent. If at any time the Company shall fail to maintain
any such required Registrar, Paying Agent or Service Agent or shall fail to
furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents 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
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 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 name or address of any such
co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying
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<PAGE> 18
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of Securityholders of any Series of Securities all money
held by it as Paying Agent.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least ten days before each interest payment date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Securityholders of each Series of Securities.
Section 2.7. Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen days immediately preceding the
mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
Section 2.8. 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 in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as
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may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
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In determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Discount Security
that shall be deemed to be outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver Securities of a Series owned by the Company
or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee upon request shall authenticate definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this Indenture
as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and
deliver a certificate of such destruction to the Company, unless the Company
otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states
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the record date, the payment date and the amount of interest to be paid. The
Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or
more Global Securities and the Depository for such Global Security or
Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture
for Securities registered in the names of Holders other than the Depository for
such Security or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository within 90 days of such event, (ii) the Company
executes and delivers to the Trustee an Officers' Certificate to the effect that
such Global Security shall be so exchangeable or (iii) an Event of Default with
respect to the Securities represented by such Global Security shall have
happened and be continuing. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in such
names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.14.3. Legend. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depository or a
nominee of the Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such a successor Depository."
2.14.4. Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
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2.14.5. Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment of
the principal of and interest, if any, on any Global Security shall be made to
the Holder thereof.
2.14.6. Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
Section 2.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, 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 elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities. If a
Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $1,000.
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Securities of the Series and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2.10, the minimum
principal denomination for each Series and integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for
redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution,
a supplemental indenture hereto or an Officers' Certificate, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail a
notice of redemption by first-class mail to each Holder whose Securities are to
be redeemed and if any Bearer Securities are outstanding, publish on one
occasion a notice in an Authorized Newspaper.
The notice shall identify the Securities of the Series to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(e) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date; and
(f) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in Section
3.3, Securities of a Series called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be
conditional. Upon surrender to the Paying Agent, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date.
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Section 3.5. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of each
Series of Securities that it will duly and punctually pay the principal of and
interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA ss. 314(a).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 100 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate
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specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey,
transfer or lease all or substantially all of its properties and assets to, any
person (a "successor person"), and may not permit any person to merge into, or
convey, transfer or lease its properties and assets substantially as an entirety
to, the Company, unless:
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(a) the successor person (if any) is a corporation,
partnership, trust or other entity organized and validly existing under
the laws of any U.S. domestic jurisdiction and expressly assumes the
Company's obligations on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no
Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers' Certificate, it is
provided that such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of
that Series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a Paying
Agent prior to the expiration of such period of 30 days); or
(b) default in the payment of the principal of any Security of
that Series when such payment becomes due and payable, at its Maturity,
upon redemption or otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due in respect of any Security of that Series; or
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(d) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty that has been included in this Indenture solely for the
benefit of Series of Securities other than that Series), which default
continues uncured 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 aggregate
principal amount of the outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is unable to pay its debts as the same
become due; or
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of
its Significant Subsidiaries or for all or substantially all
of its property, or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries, and the order or decree remains
unstayed and in effect for 60 days; or
(g) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, in
accordance with Section 2.2.18.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
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Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default as to
the Company referred to in Section 6.1(e) or (f)) then in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if
any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and
accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall
become immediately due and payable. If an Event of Default specified in Section
6.1(e) or (f) shall occur as to the Company, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding
Securities shall ipso facto become and be 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
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:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities
of that Series,
(ii) the principal of any Securities of that Series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon any overdue principal and overdue
interest at the rate or rates prescribed therefor in such
Securities, and
(iv) 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
(b) all Events of Default with respect to Securities of that
Series, other than the non-payment of the principal of Securities of
that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
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No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of principal of any
Security at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment
when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name 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 such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any 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 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective
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of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, 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 6.6. 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 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 7.7;
and
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Second: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and
Third: To the Company.
Section 6.7. 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
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Security on
the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in Section 2.8, 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 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible
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Officer of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal of
or interest on any Security of such Series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any Series
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). 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 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise 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.
(b) Except during the continuance of an Event of Default:
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(i) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(ii) 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 Officers' Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of
this Indenture; however, in the case of any such Officers'
Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates
and Opinions of Counsel to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it with
respect to Securities of any Series in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
Series.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this
Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, 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 is
not reasonably assured to it.
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(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of
care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
Section 7.2. Rights of Trustee.
Subject to Section 7.1 hereof:
(a) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care. No Depository shall be deemed an agent of the Trustee
and the Trustee shall not be responsible for any act or omission by any
Depository.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel 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.
(f) 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 of Securities 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.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4. Trustee's Disclaimer.
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The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible Officer of
the Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series and, if any Bearer Securities are outstanding, publish on one
occasion in an Authorized Newspaper, notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except in the case of
a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as
its corporate trust committee or a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar and, if any Bearer Securities are outstanding, publish in
an Authorized Newspaper, a brief report dated as of such May 15, in accordance
with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost of
defending itself) against any loss, liability or expense incurred by it except
as set forth in the next paragraph in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company
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need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. This indemnification shall apply to officers,
directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
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If a successor Trustee with respect to the Securities of any one or
more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of any one or more Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series and, if any Bearer Securities are
outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 hereof shall continue for the benefit of
the retiring trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
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ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed,
lost or stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) 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, or
(4) are deemed paid and discharged pursuant
to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the
case of Securities which have become due and payable on or
prior to the date of such deposit) or to the Stated Maturity
or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.7, and,
if money shall have been deposited with the Trustee pursuant to clause (a) of
this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money
deposited with the Trustee pursuant to Section 8.1, all money and U.S.
Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.3 or 8.4 and all money received by
the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section
8.3 or 8.4, 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 interest for
whose payment such money has been deposited with or received by the
Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Obligations deposited
pursuant to Sections 8.3 or 8.4 or the interest and principal received
in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or Foreign
Government Obligations or money held by it as provided in Sections 8.3
or 8.4 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under
this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section
2.2.20, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day
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after the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such outstanding Securities of
such Series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall, at Company Request, execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d) hereof, (i)
payment of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and
(ii) the benefit of any mandatory sinking fund payments applicable to
the Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and
8.5; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities (i)
in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and
principal in respect thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, 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 each installment of principal (including mandatory
sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or
principal are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
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(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the
Securities of such Series will not recognize income, 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
and in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such Series over any other creditors of the company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i) such deposit 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; and
(j) 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 the defeasance
contemplated by this Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section
2.2.20 to be inapplicable to Securities of any Series, on and after the 91st day
after the date of the deposit referred to in subparagraph (a) hereof, the
Company may omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants
contained in a supplemental indenture hereto for a particular Series of
Securities or a Board Resolution or an Officers' Certificate delivered pursuant
to Section 2.2.20 (and the failure to comply with any such covenants shall not
constitute a Default or Event of Default under Section 6.1), with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
(a) with reference to this Section 8.4, the Company has
deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities (i) in the case of Securities of such Series
denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or
U.S. Government Obligations, or (ii) in the case of Securities of such
Series denominated in a Foreign Currency (other than a composite
currency), money
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and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with their
terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day
before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay principal and
interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or
principal are due;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default with respect to the
Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the 91st day after
such date;
(d) the Company shall have delivered to the Trustee an Opinion
of Counsel confirming that Holders of the Securities of such Series
will not recognize income, 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 amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance
had not occurred;
(e) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
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ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this
Indenture;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(g) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
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<PAGE> 45
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an
amendment or waiver may not:
(a) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of
interest (including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable
upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of or interest, if any, on any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at
least a majority in principal amount of the outstanding Securities of
such Series and a waiver of the payment default that resulted from such
acceleration);
(f) make the principal of or interest, if any, on any Security
payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13, 9.3 (this
sentence), 10.15 or 10.16; or
(h) waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any
Securities.
Section 9.4. Compliance with Trust Indenture Act.
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Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
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 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
Section 10.2. Notices.
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<PAGE> 47
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
Outdoor Systems, Inc.
if to the Trustee:
[Name of Trustee]
[Address]
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar and,
if any Bearer Securities are outstanding, published in an Authorized Newspaper.
Failure to mail a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA ss.
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
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<PAGE> 48
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such person, 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
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
Unless otherwise provided by Board Resolution, Officers' Certificate or
supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
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<PAGE> 49
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
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 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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<PAGE> 50
Section 10.15. Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
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<PAGE> 51
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of a Series, except as otherwise permitted
or required by any form of Security of such Series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a "mandatory
sinking fund payment" and any other amount provided for by the terms of
Securities of such Series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any Series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made pursuant to the
terms of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is applicable and
which have been redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or
other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officers' Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the
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<PAGE> 52
process of selecting Securities for redemption, and shall be credited for such
purpose by the Trustee at the price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery
by the Company to the Trustee of Securities of that Series purchased by the
Company having an unpaid principal amount equal to the cash payment required to
be released to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture hereto or Officers' Certificate in respect of
a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution,
Officers' Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.3. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
OUTDOOR SYSTEMS, INC.
By:
------------------------
Name:
Its:
[Name of Trustee]
By:
------------------------
Name:
Its:
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<PAGE> 1
EXHIBIT 5.1
[POWELL, GOLDSTEIN, FRAZER & MURPHY LLP LETTERHEAD]
December 8, 1998
Outdoor Systems, Inc.
2502 N. Black Canyon Highway
Phoenix, Arizona 85009
Re: $1,000,000,000 Aggregate Offering Price of Securities of Outdoor
Systems, Inc.
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") filed on December 8, 1998 with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested our opinion with respect to
the matters set forth below.
You have provided us with a prospectus (the "Prospectus") which is a
part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each a
"Prospectus Supplement"). The Prospectus as supplemented by various Prospectus
Supplements will provide for the issuance and sale by Outdoor Systems, Inc., a
Delaware corporation (the "Company"), of up to $1,000,000,000 aggregate offering
price of (i) one or more series of debt securities (the "Debt Securities"), (ii)
shares of common stock, par value $.01 per share (the "Common Stock"), (iii)
shares of preferred stock, par value $.01 per share (the "Preferred Stock") and
(iv) warrants to acquire Debt Securities, Common Stock or Preferred Stock
(collectively, the "Warrants"), and the issuance by certain of the Company's
direct and indirect wholly-owned subsidiaries (the "Subsidiaries") of guarantees
of the Debt Securities (the "Guarantees"). The Debt Securities, the Guarantees,
the Preferred Stock, the Common Stock and the Warrants are collectively referred
to herein as the "Securities." The Registration Statement provides that Debt
Securities may be convertible into shares of Common Stock or shares of Preferred
Stock, and that shares of Preferred Stock may be convertible into shares of
Common Stock or Debt Securities.
The Debt Securities will be issued pursuant to one or more indentures
in the form filed as an exhibit to the Registration Statement, as amended or
supplemented from time to time (each, an "Indenture"), between the Company, as
obligor, and a trustee chosen by the Company and qualified to act as such under
the Trust Indenture Act of 1939, as amended (each, a "Trustee"). The Warrants
will be issued under one or more warrant agreements (each, a "Warrant
Agreement"), by and among the Company and a financial institution identified
therein as warrant agent (each, a "Warrant Agent").
<PAGE> 2
Outdoor Systems, Inc.
December 8, 1998
Page 2
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization and issuance of the Securities. For
purposes of this opinion, we have assumed that such proceedings will be timely
and properly completed, in full compliance with all requirements of applicable
federal, Delaware and other laws, rules, and regulations, in the manner
currently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such agreements, instruments, corporate
records and other documents of the Company as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We have been furnished with, and with your consent have relied upon
exclusively, certificates of officers of the Company with respect to certain
factual matters set forth therein. In addition, we have obtained and relied upon
such certificates and assurances from public officials as we have deemed
necessary.
We are opining herein only as to the General Corporation Law of the
State of Delaware and, with respect to the opinions set forth in paragraphs 1, 2
and 5 below, the internal laws of the State of New York (excluding the conflict
of law provisions thereof), and we express no opinion with respect to the laws
of any other jurisdiction or, in the case of Delaware, any other laws, or as to
any matters of municipal law or the laws, rules, or regulations of any local
agencies within any state.
Based upon and subject to the foregoing and the other qualifications
set forth herein, it is our opinion that, as of the date hereof:
1. When (a) the Company and the Trustee duly execute and deliver an
Indenture and the specific terms of a particular Debt Security have been duly
established in accordance with the terms of such Indenture, and such Debt
Securities have been duly authenticated by the Trustee and duly executed and
delivered on behalf of the Company against payment therefor in accordance with
the terms and provisions of the Indenture and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (b) when the Registration Statement and any required post-effective
amendments thereto have all become effective under the Securities Act, and (c)
assuming that the terms of the Debt Securities as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (d) assuming that the Debt Securities as executed
and delivered do not violate any law, rule or regulation applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company or to which
<PAGE> 3
Outdoor Systems, Inc.
December 8, 1998
Page 3
the Company or any of its assets is subject, and (e) assuming that the Debt
Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether or not imposed by any
court or governmental or regulatory body having jurisdiction over the Company
and (f) assuming that the Debt Securities are then issued and sold as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Debt Securities will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
the terms of the Debt Securities.
2. When (a) the Company, the Subsidiaries delivering Guarantees of Debt
Securities and the Trustee duly execute and deliver an Indenture and the
specific terms of the Guarantees and the related Debt Securities have been duly
established in accordance with the terms of the applicable Indenture, the
Guarantees have been duly executed and delivered and the related Debt Securities
have been duly authenticated by the Trustee and duly executed and delivered on
behalf of the Company against payment therefor in accordance with the terms and
provision of the applicable Indenture and as contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (b) when
the Registration Statement and any required post-effective amendment thereto
have all become effective under the Securities Act, and (c) assuming that the
terms of the Guarantees as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (d) assuming that the Guarantees as executed and delivered do not violate
any law, rule or regulation applicable to each Subsidiary delivering a Guarantee
or result in a default under or breach of any agreement or instrument binding
upon each such Subsidiary or to which any such Subsidiary or any of its assets
is subject, and (e) assuming that the Guarantees as executed and delivered
comply with all requirements and restrictions, if any, applicable to each
Subsidiary delivering a Guarantee, whether or not imposed by any court or
governmental or regulatory body having jurisdiction over each such Subsidiary,
and (f) assuming that the Guarantees are then issued as contemplated in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
the Guarantees will constitute valid and binding obligations of each Subsidiary
delivering a Guarantee, enforceable against each such Subsidiary in accordance
with the terms of the Guarantees.
3. The Company has the authority pursuant to its Fourth Amended and
Restated Certificate of Incorporation (the "Certificate of Incorporation") to
issue up to 12,000,000 shares of Preferred Stock. When a series of Preferred
Stock has been duly established in accordance with the terms of the Certificate
of Incorporation and applicable law, and upon adoption by the Board of Directors
of the Company of a resolution in form and content as required by applicable law
and upon issuance and delivery of and payment for such shares in the manner
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s) and by such resolution, such shares of such series of
Preferred Stock will be validly issued, fully paid and nonassessable.
4. The Company has the authority pursuant to its Certificate of
Incorporation to issue up to 600,000,000 shares of Common Stock. Upon adoption
by the Board of Directors of the
<PAGE> 4
Outdoor Systems, Inc.
December 8, 1998
Page 4
Company of a resolution in form and content as required by applicable law and
upon issuance and delivery of and payment for shares of Common Stock not in
excess of the aggregate number of shares of Common Stock authorized but unissued
or held in treasury by the Company in the manner contemplated by the
Registration Statement, the Prospectus and the related Prospectus Supplement(s)
and by such resolution, such shares of Common Stock will be validly issued,
fully paid and nonassessable.
5. When (a) the Company and the Warrant Agent duly execute and deliver
a Warrant Agreement and the specific terms of a particular Warrant have been
duly established in accordance with the terms of such Warrant Agreement, and
such Warrants have been duly authenticated by the Warrant Agent and duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the Warrant Agreement and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when the Registration Statement and any
required post-effective amendments thereto have all become effective under the
Securities Act, and (c) assuming that the terms of the Warrants as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (d) assuming that the Warrants as executed
and delivered do not violate any law, rule, or regulation applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company or to which the Company or any of its assets is
subject, and (e) assuming that the Warrants as executed and delivered comply
with all requirements and restrictions, if any, applicable to the Company,
whether or not imposed by any court or governmental or regulatory body having
jurisdiction over the Company and (f) assuming that the Warrants are then issued
and sold as contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), the Warrants will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
The opinions set forth in paragraphs 1, 2 and 5 above are subject to
the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors; (ii) the effect of general principles of
equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; (iii) the unenforceability
under certain circumstances under law or court decisions of provisions providing
for the indemnification of, or contribution to, a party with respect to a
liability where such indemnification or contribution is contrary to public
policy; (iv) we express no opinion concerning the enforceability of any waiver
of rights or defenses with respect to stay, extension or usury laws; and (v) we
express no opinion with respect to whether acceleration of Debt Securities may
affect the collectibility of any portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon. The opinions
set forth in paragraphs 1 and 2 above are further qualified in that certain
remedies, waivers and other provisions of the
<PAGE> 5
Outdoor Systems, Inc.
December 8, 1998
Page 5
Indenture, the Guarantees and the Debt Securities may be unenforceable;
nevertheless, such unenforceability will not render the Indenture, the
Guarantees or the Debt Securities invalid as a whole or preclude the judicial
enforcement of the obligations of the Company or the Guarantors to pay the
principal of and interest on the Debt Securities as provided therein.
To the extent that the obligations of the Company and the Subsidiaries
under an Indenture may be dependent upon such matters, we assume for purposes of
this opinion that each of the Company and the Subsidiaries has been duly
organized and is validly existing under applicable state law, and has the
organizational power and authority to issue and sell the Securities; that the
applicable Indenture has been duly authorized by all necessary organizational
action by the Company and the Subsidiaries, has been duly executed and delivered
by the Company and the Subsidiaries and constitutes the legally valid, binding
and enforceable obligation of each of the Company and the Subsidiaries
enforceable against each of the Company and the Subsidiaries in accordance with
its terms; that the Trustee for each Indenture is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that the Trustee is duly qualified to engage in the activities
contemplated by the applicable Indenture; that the applicable Indenture has been
duly authorized, executed and delivered by the Trustee and constitutes a legally
valid, binding and enforceable obligation of the Trustee, enforceable against
the Trustee in accordance with its terms; that the Trustee is in compliance,
generally and with respect to acting as Trustee under the applicable Indenture,
with all applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
To the extent that the obligations of the Company under each Warrant
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware and has the corporate power
and authority to issue and sell the Securities; that the applicable Warrant
Agreement has been duly authorized by all necessary corporate action by the
Company, has been duly executed and delivered by the Company and constitutes the
legally valid, binding and enforceable obligation of the Company enforceable
against the Company in accordance with its terms; that the Warrant Agent is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that the Warrant Agent is duly qualified to engage
in the activities contemplated by the Warrant Agreement; that the Warrant
Agreement has been duly authorized, executed and delivered by the Warrant Agent
and constitutes the legally valid, binding and enforceable obligation of the
Warrant Agent, enforceable against the Warrant Agent in accordance with its
terms; that the Warrant Agent is in compliance, generally and with respect to
acting as a Warrant Agent under the Warrant Agreement, with all applicable laws
and regulations; and that the Warrant Agent has the requisite organizational and
legal power and authority to perform its obligations under the Warrant
Agreement.
<PAGE> 6
Outdoor Systems, Inc.
December 8, 1998
Page 6
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy LLP
------------------------------------------
<PAGE> 1
EXHIBIT 12.1
OUTDOOR SYSTEMS, INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
(IN THOUSANDS EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------- ---------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (loss) before taxes
and extraordinary loss $ 338 $ 3,054 $ 3,086 $ 24,536 $ 40,696 $ 26,100 $ 50,595
-------- -------- -------- -------- -------- -------- --------
Fixed charges:
Interest 11,894 16,393 17,199 32,489 87,150 55,190 101,349
Rent 3,252 3,323 4,511 9,930 30,065 22,549 36,025
Preferred stock dividend 3,378 1,470 1,590 488
-------- -------- -------- -------- -------- -------- --------
Total fixed charges 18,524 21,186 23,300 42,907 117,215 77,739 137,374
-------- -------- -------- -------- -------- -------- --------
Adjusted earnings $ 18,862 $ 24,240 $ 26,386 $ 67,443 $157,911 $103,839 $187,969
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges 1.02x 1.14x 1.13x 1.57x 1.35x 1.34x 1.37x
-------- -------- -------- -------- -------- -------- --------
</TABLE>
<PAGE> 1
EXHIBIT 12.2
OUTDOOR SYSTEMS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------- ----------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (loss) before taxes
and extraordinary loss $ 338 $ 3,054 $ 3,086 $ 24,536 $ 40,696 $ 26,100 $ 50,595
-------- -------- -------- -------- -------- -------- --------
Fixed charges:
Interest 11,894 16,393 17,199 32,489 87,150 55,190 101,349
Rent 3,252 3,323 4,511 9,930 30,065 22,549 36,025
-------- -------- -------- -------- -------- -------- --------
Total fixed charges 15,146 19,716 21,710 42,419 117,215 77,739 137,374
-------- -------- -------- -------- -------- -------- --------
Adjusted earnings $ 15,484 $ 22,770 $ 24,796 $ 66,955 $157,911 $103,839 $187,969
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed
charges 1.02x 1.15x 1.14x 1.58x 1.35x 1.34x 1.37x
-------- -------- -------- -------- -------- -------- --------
</TABLE>
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Outdoor Systems, Inc. on Form S-3 of our report dated February 3, 1998, except
for the last paragraph of Note 5, for which the date is March 17, 1998, and our
report on the financial statement schedule dated March 17, 1998, appearing in
the Annual Report on Form 10-K of Outdoor Systems, Inc. for the year ended
December 31, 1997 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
December 7, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of Outdoor Systems, Inc. of our report dated March 21, 1997, except for
Note 10 as to which the date is May 1, 1997, on our audits of the financial
statements of National Advertising Company as of December 31, 1996 and 1995 and
for each of the three years in the period ended December 31, 1996, which report
is included in the Current Report on Form 8-K filed by Outdoor Systems, Inc. on
August 29, 1997. We also consent to the reference to our firm under the caption
"Experts."
PricewaterhouseCoopers LLP
Chicago, Illinois
December 7, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Outdoor Systems,
Inc. of our report dated May 14, 1998, except for Notes 14 and 15 which are as
of August 11, 1998, on our audit of the combined financial statements of Vendor,
S.A. de C.V. and MM Billboard as of December 31, 1997 and for the year then
ended appearing in Outdoor Systems, Inc.'s Current Report on Form 8-K dated July
16, 1998, as amended September 11, 1998. We also consent to the references to us
under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers
Manual Garcia Brana
Public Accountant
Mexico City
December 7, 1998
