1
EXHIBIT 4.1
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A. H. BELO CORPORATION,
COMPANY
AND
____________________________________________,
TRUSTEE
_______________________________________
INDENTURE
DATED AS OF _________________________, 1997
_______________________________________
================================================================================
2
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture
dated as of ___________________, 1997 between A. H. Belo Corporation and
_______ ____________________________.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
Section 310
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
Section 311
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)(2), 7.3(b)
Section 312
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1, 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
Section 313
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.2, 7.3(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a), 6.1(c)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
3
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2, 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
Section 317
(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
ii
4
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Subsidiary . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar" or "$ . . . . . . . . . . . . . . . . . . . . . . . 3
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
European Communities . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Fixed Rate Security . . . . . . . . . . . . . . . . . . . . 3
Floating Rate Security . . . . . . . . . . . . . . . . . . . 3
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . 4
iii
5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . 6
Principal Property . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 6
Sale and Lease-Back Transaction . . . . . . . . . . . . . . 6
Securities" or "Security . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . 6
Significant Subsidiary . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . 7
United States Alien . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . 7
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . 8
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . 9
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . . . 10
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . 10
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . 11
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . 11
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . 11
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . 11
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . 11
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . . . 12
SECTION 1.14 Incorporators, Stockholders, Officers and Directors
Exempt from Individual Liability . . . . . . . . . . 12
iv
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ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . 13
SECTION 2.3 Securities Issuable in the Form of a Global Security 13
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . 16
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . 19
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . 21
SECTION 3.5 Registration, Registration of Transfer and Exchange . 22
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities . . 23
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . 24
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . 24
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . 25
SECTION 3.11 Currency of Payments in Respect of Securities . . . . 25
SECTION 3.12 Judgments . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . 26
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . 27
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . 27
SECTION 5.2 Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . 29
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 31
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . 31
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . 32
v
7
SECTION 5.6 Application of Money Collected . . . . . . . . . . . 33
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . 33
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest . . . . . . . 34
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . 34
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . 34
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . 35
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . 35
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . 35
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . 36
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . 36
SECTION 5.16 Duty to Accelerate . . . . . . . . . . . . . . . . . 36
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . 36
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . 38
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . 38
SECTION 6.4 Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . 39
SECTION 6.5 May Hold Securities . . . . . . . . . . . . . . . . . 40
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . 40
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . 40
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . 41
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . 41
SECTION 6.10 Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . 41
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . 43
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . 44
SECTION 6.13 Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . 44
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . 44
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . 46
SECTION 7.2 Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . 47
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . 48
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . 49
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . . . . . . . 50
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . 50
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without
Consent of Holders . . . . . . . . . . . . . . . . . 51
SECTION 9.2. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . 52
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . 53
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . 53
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . 53
SECTION 9.6 Reference in Securities to
Supplemental Indentures . . . . . . . . . . . . . . 54
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . 54
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . 54
SECTION 10.3 Money for Securities Payments
To Be Held in Trust . . . . . . . . . . . . . . . . . 54
SECTION 10.4 Corporate Existence . . . . . . . . . . . . . . . . . 56
SECTION 10.5 Maintenance of Properties . . . . . . . . . . . . . . 56
SECTION 10.6 Payment of Taxes and Other Claims . . . . . . . . . . 56
vii
9
SECTION 10.7 Limitation on Indebtedness
Secured by a Mortgage . . . . . . . . . . . . . . . . 57
SECTION 10.8 Limitation on Sale and Lease-Back . . . . . . . . . . 58
SECTION 10.9 Statement as to Compliance . . . . . . . . . . . . . 59
SECTION 10.10 Waiver of Certain Covenants . . . . . . . . . . . . . 60
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . 60
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . . . 60
SECTION 11.3 Selection by Trustee of
Securities to Be Redeemed . . . . . . . . . . . . . . 60
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . 61
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . . . 61
SECTION 11.6 Securities Payable on Redemption Date . . . . . . . . 62
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . . . 62
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . 62
SECTION 12.2 Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . 63
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . . . 63
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article . . . . . . . . . . . . . . 63
SECTION 13.2. Defeasance upon Deposit of Moneys or
U.S. Government Obligations . . . . . . . . . . . . . 64
SECTION 13.3. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust . . . . . . . . . . . 66
SECTION 13.4 Reinstatement . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.5 Repayment to Company . . . . . . . . . . . . . . . . 66
-------------------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
viii
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INDENTURE
THIS INDENTURE, is dated as of ___________________, 1997 between A. H.
Belo Corporation, a Delaware corporation (herein called the "Company") and
_____ ___________________________________, a _________________________ as
Trustee (herein called the "Trustee").
RECITALS:
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein collectively
called the "Securities" or in the singular, a "Security"), to be issued in one
or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture and any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein as of the date of this Indenture;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
11
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means, with respect to the Securities of any
series, any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of such series.
"Board of Directors" means either the board of directors of the Company
or a duly authorized committee of such board, including but not limited to, the
Special Finance Committee or any successor committee thereto.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of Dallas,
State of Texas or The City of New York, State of New York, are authorized or
obligated by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
and Chief Executive Officer, or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
2
12
"Consolidated Subsidiary" means at any date any Subsidiary the accounts
of which are consolidated with those of the Company as of such date for public
financial reporting purposes.
"Consolidated Net Tangible Assets" has the meaning specified in Section
10.7.
"Corporate Trust Office" means the principal office of the Trustee in
___________________ at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at _______________________________.
"corporation" includes corporations, associations, business trusts,
joint-stock companies, limited liability companies, joint ventures, general
partnerships and limited partnerships.
"Currency" means Dollars or Foreign Currency.
"Depository" means unless otherwise specified by the Company pursuant to
either Sections 2.3 or 3.1, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Discharged" has the meaning specified in Section 13.2.
"Dollar" or "$" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Fixed Rate Security" means a Security which provides for the payment of
interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the payment
of interest at a variable rate determined periodically by reference to an
interest rate index specified pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
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"Funded Debt" has the meaning specified in Section 10.8.
"Global Security" means a Security issued to evidence all or a part of
any series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered as to principal and interest in the name of
the Depository or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" has the meaning specified in Section 10.7.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal or, in the
case of an Original Issue Discount Security, the principal amount payable upon
a declaration of acceleration pursuant to Section 5.2, becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 10.7.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount" shall have the same meaning as such term is
given in Section 1273 of the Internal Revenue Code of 1986, as amended, or any
successor provision thereto.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon the
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities
have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (a)
the principal amount of an Original Issue Discount Security which shall
be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 5.2, (b) if, as of
such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, then the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified
or determined as contemplated shall be the amount as specified or
determined as contemplated by Section 3.1, (c) the principal amount of a
Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as
contemplated by Section 3.1, of the principal amount of such Security,
(or, in the case of a Security described in Clause (a) or (b) above, of
the amount determined as provided in such Clause), and (d) Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing or printing plant,
distribution center, warehouse, office building, television station or
transmission facility owned by the Company or any Restricted Subsidiary or any
other property or right owned by or granted to the Company or any Restricted
Subsidiary and used or held for use in the newspaper or television business
conducted by the Company or any Restricted Subsidiary, except for any such
property or right which in the opinion of the Board of Directors of the
Company, as set forth in a Board Resolution adopted in good faith, is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries considered as one enterprise.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" has the meaning specified in Section 10.7.
"Sale and Lease-Back Transaction" has the meaning specified in Section
10.8.
"Securities" or "Security" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities or Security
authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in Section 3.5.
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"Significant Subsidiary" has the meaning specified in Section 5.1.
"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 an amount equal to the principal of
such Security or an installment of principal thereof or interest thereon is due
and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean and include each Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" shall mean and include each such Person, and "Trustee," as
used with respect to the Securities of any series, shall mean the Trustee with
respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 9.5.
"United States" means the United States of America (including the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien" means any person who, for United States Federal
income tax purposes, is a foreign corporation, a nonresident alien individual,
a nonresident fiduciary of a foreign estate or trust, or a foreign partnership
one or more members of which is, for United States Federal income tax purposes,
a foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section 13.2.
"Value" has the meaning set forth in Section 10.8.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate (other than any Officers' Certificate delivered
pursuant to Section 10.9) or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of
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the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Any certificate or opinion of an officer or opinion of counsel may be
based, insofar as it relates to any accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such accounting matters are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by a specified percentage of Holders of one or more series then
Outstanding may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments is or are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
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(d) The Company may fix a record date for the purpose
of determining the identity of the Holders entitled to participate in any Act
authorized or permitted under this Indenture, which record date shall be the
later of (i) 10 days prior to the first solicitation of the written instruments
required for such Act or (ii) the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 7.1.
If such a record date is fixed, the Persons who were the Holders of the
Securities of the affected series at the close of business on such record date
(or their duly authorized proxies) shall be the only Persons entitled to
execute written instruments with respect to such Act, or to revoke any written
instrument previously delivered, whether or not such Persons shall continue to
be Holders of the Securities of such series after such record date. No such
written instrument shall be valid or effective for more than 150 days after
such record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
__________________________________, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice provided, however, that, in any case, any notice to
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Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, the imposed duties shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provisions shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York except as may be otherwise
required by mandatory provisions of law.
SECTION 1.13 Legal Holidays.
Unless otherwise specified pursuant to Section 3.1, in any case where
the due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then (notwithstanding
any other provision of this Indenture or of the Securities) payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such due date or Redemption Date; provided that no interest shall
accrue for the period from and after such prior date.
SECTION 1.14 Incorporators, Stockholders, Officers and Directors Exempt from
Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as such, or against
any past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the form or
forms (including global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and
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other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
all as may, consistently herewith, be determined by the officers executing such
Securities to be necessary or appropriate, as evidenced by their execution of
the Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action together with a true and correct copy of the form of the Securities
of such series approved by or pursuant to such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed, or engraved on
steel engraved borders, or word processed or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
----------------------------------- -------------------------------------
as Trustee as Trustee
OR
By: By:
-------------------------------- ---------------------------------
Authorized Officer As Authenticating Agent
By:
---------------------------------------
Authorized Officer
SECTION 2.3 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section
3.1 that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 3.3 and the Company
Order delivered to the Trustee thereunder, authenticate and
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deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depository
for such Global Security or Securities or its nominee, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the Depository's instruction
and (iv) shall bear a legend substantially to the following effect: THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
(b) Notwithstanding any other provision of this Section
2.3 or of Section 3.5, unless otherwise provided in the Global Security, a
Global Security may be transferred, in whole but not in part and in the manner
provided in Section 3.5, only to the Depository or another nominee of the
Depository for such Global Security, or to a successor Depository for such
Global Security selected or approved by the Company or to a nominee of such
successor Depository. Except as provided below, owners solely of beneficial
interests in a Global Security shall not be entitled to receive physical
delivery of the Securities represented by such Global Security and will not be
considered the Holders thereof for any purpose under the Indenture.
(c) (i) If at any time the Depository for a Global
Security notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time the Depository for the
Securities for such series shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depository with
respect to such Global Security. If a successor Depository for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.1(16) shall no longer be effective with respect
to such Global Security and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole
discretion determine that the Securities of any series issued or issuable in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver individual
Securities of such series of like
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tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of such Global Security or Securities representing such
series in exchange for such Global Securities or Securities.
(iii) A Global Security will also be exchangeable
if there shall have occurred and is continuing an Event of Default or an event
which, with the giving of notice or lapse of time or both, would constitute an
Event of Default with respect to the Securities of such series represented by
such Global Security. In such event the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series in exchange for such Global Securities or Securities.
(iv) If specified by the Company pursuant to
Section 3.1 with respect to Securities issued or issuable in the form of a
Global Security, the Depository for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depository. Thereupon the Company shall
execute, and the Trustee shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depository a new Security or
Securities of the same series of like tenor and terms and of any authorized
denominations as requested by such Person or the Depository in aggregate
principal amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and (2) to such Depository a new Global Security of
like tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(v) Upon issuance, all Securities with identical
terms and held by the Depository on behalf of its participants will be
represented by one Global Security and be deposited with the Depository and
registered in the name of a nominee of the Depository. The Company may request
the Trustee at any time to consolidate two or more outstanding Global
Securities having identical terms and for which interest has been paid to the
same date.
(vi) In any exchange provided for in any of the
preceding five paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual fully registered Securities in authorized
denominations, provided that the definitive Securities so issued in exchange
for a Global Security shall be in denominations of $100,000 and any aggregate
principal amount and tenor as the portion of such Global Security to be
exchanged, and provided further that, unless the Company agrees otherwise,
Securities in certificated registered form will be issued in exchange for a
Global Security, or any portion thereof, only if such Securities in
certificated registered form were requested by written notice to the Trustee or
the Securities Registrar by or on behalf of a person who is beneficial owner of
an interest thereof given through the Holder hereof. Except as provided above,
owners of beneficial interest
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in a Global Security will not be entitled to receive physical delivery of
Securities in certificated registered form and will not be considered the
Holders thereof for any purpose under the Indenture. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Upon the exchange of a Global Security
for individual Securities, such Global Security shall be cancelled by the
Trustee. Securities issued in exchange for a Global Security pursuant to this
Section 2.3 shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to the
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
(vii) Members in and participants of the
Depository shall have no rights under the Indenture with respect to any Global
Security held on their behalf by a Depository, and such Depository may be
treated by the Company, the trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever.
(d) Any Company Order delivered pursuant to Section 3.3
by the Company with respect to the authentication, exchange, endorsement or
delivery or redelivery of a Global Security shall be in writing, signed by any
one of the officers enumerated under the definition of "Company Order"
contained in Section 1.1 or by any officer authorized by a previously delivered
Company Order, but need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for,
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or in lieu of, other Securities of the series pursuant to Sections 2.3,
3.4, 3.5, 3.6, 9.6 or 11.7 and except for Securities which, pursuant to
Section 3.3 are deemed never to have been authenticated and delivered);
(3) the date or dates on which or periods during which the
Securities of the series may be issued and the date or dates on which or
the range of dates within which the principal of (and premium, if any,
on) the Securities of the series are or may be payable;
(4) the rate or rates or the methods of determination thereof
at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue and the dates on
which such interest shall be payable and the record date for the
interest payable on any such interest date;
(5) the place or places, if any, in addition to the City of
New York, where, subject to Section 10.2, the principal of (and premium,
if any) and interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which or the dates on which,
the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company and/or the method by which such period or periods,
dates, price or prices and terms and conditions shall be determined;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased or repaid, in whole or in part, pursuant to such obligation
and/or the method by which such period or periods, price or prices or
terms and conditions shall be determined;
(8) provisions, if any, for the defeasance of Securities of
the series;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 5.2 or the method by which such portion shall be determined; and
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(11) if other than Dollars, the Foreign Currency in which
Securities of the series shall be denominated, or in which payment of
the principal of (and premium, if any) and interest on the Securities of
the series may be made or the method by which such Foreign Currency
shall be determined;
(12) if the principal of (and premium, if any) or interest on
Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Securities are denominated or stated to be payable without such
election, the periods within which and the terms and conditions upon
which, such election may be made and the time and the manner of
determining the exchange rate between the Currency in which the
Securities are denominated or payable without such election and the
Currency in which the Securities are to be paid if such election is
made;
(13) if the amount of payments of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Securities are
payable, or any other type of index, the manner in which such amounts
shall be determined;
(14) if the Securities of the series are denominated or payable
in a Foreign Currency, any other terms concerning the payment of
principal of (premium, if any) or any interest on such Securities
(including the Currency or Currencies of payment thereof);
(15) any additions to or changes in the Events of Default or
covenants provided for with respect to Securities of the series or any
Events of Default or covenants herein specified which shall not be
applicable to the Securities of the series;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities or for other Global Securities; and the Depository for such
Global Security or Securities;
(17) whether the Securities of the series are to be issuable in
definitive form (whether upon original issuance or upon exchange of a
Temporary Security of the series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
and, if so, the form and terms of such certificates, documents or
conditions;
(18) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a
United States Alien (including any modification in the definition of
such term), in respect of any tax, assessment or governmental charge
withheld or deducted, under what circumstances and with what procedures
and documentation the Company will pay such additional amounts, whether
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such additional amount will be treated as interest or principal pursuant
to this Indenture, and whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the terms
of any such option);
(19) any terms applicable to Original Issue Discount, if any,
including the rate or rates at which such Original Issue Discount, if
any, shall accrue;
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of any series need not be
issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to such Board
Resolution and set forth in such Officers' Certificate or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order and subject to the provisions hereof shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver such
Securities;
(2) the form of such Securities has been established in
conformity With the provisions of this Indenture;
(3) the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(4) in the event that the form or terms of such Securities
have been established in a supplemental indenture, the execution and
delivery of such supplemental indenture have been duly authorized by all
necessary corporate action of the Company, such supplemental indenture
has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforce
ability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(5) the execution and delivery of such Securities have been
duly authorized by all necessary corporate action of the Company and
such Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are the valid
and binding obligations of the Company enforceable against the Company
in accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law); and
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(6) the amount of Outstanding Securities of such series,
together with the amount of such Securities, does not exceed any limit
established under the terms of this Indenture on the amount of
Securities of such series that may be authenticated and delivered.
In the event that all Securities of a series are not issued at the same
time, the Trustee shall authenticate and deliver the Securities of such series
executed and delivered by the Company for original issuance upon receipt of an
order of the Company (which need not comply with Section 1.2 hereof), signed by
an officer or employee of the Company identified to the Trustee in an Officers'
Certificate, if the Trustee has previously received the Company Order and
Opinion of Counsel referred to in the third paragraph of this Section 3.3 with
respect to the issuance of any Securities of such series.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed, word processed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal
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amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company or the Trustee shall keep a register (the "Security
Register") in which, subject to such reasonable regulations as the Company or
the Trustee may prescribe, the Company or the Trustee shall provide for the
registration of Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency designated by the Company for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, subject to Section 2.3, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or any registrar with respect to such series of
Securities, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption
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under Section 11.3 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Company or to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of 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.
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SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the record date (as hereinafter defined) for such
interest notwithstanding the cancellation of such Security upon the
registration of transfer or exchange subsequent to the record date and prior to
such interest payment date; provided, however, that if and to the extent that
the Company shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid to the Persons in whose
names outstanding Securities are registered at the close of business on a
subsequent record date established by notice given by mail by and on behalf of
the Company to the Holders of Securities not less than fifteen days preceding
such subsequent record date, such record date to be not less than ten days
preceding the date of payment of such defaulted interest. The term "record
date" as used in this Section 3.7 with respect to any regular interest payment
date shall mean such day preceding such interest payment date as may have been
established as the record date with respect to an interest payment date for
Securities of such series in a Board Resolution in accordance with Section 3.1
hereof. The Company may also make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange in which the Securities may be listed, and upon such notice as may be
required by such exchange if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this sentence, such manner of payment shall
be deemed practicable by the Trustee.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered
to any Authenticating Agent, such Securities shall be promptly cancelled by
such Authenticating Agent and forwarded to the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly
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permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order; provided that the Trustee shall
not be required to dispose of securities in a manner deemed impracticable by
the Trustee.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 3.11 Currency of Payments in Respect of Securities.
(a) Except as otherwise specified pursuant to Section
3.1, payment of the principal of (and premium, if any) and interest on
Securities of any series will be made in Dollars.
(b) For purposes of any provision of the indenture
where the Holders of Outstanding Securities may perform an Act which requires
that a specified percentage of the Outstanding Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Securities of all series in respect of which moneys are to be disbursed
ratably, the principal of (and premium, if any) and interest on the Outstanding
Securities denominated in a Foreign Currency will be the amount in Dollars
based upon exchange rates determined as specified pursuant to Section 3.1 for
Securities of such series, as of the date for determining whether the Holders
entitled to perform such Act have performed it, or as of the date of such
decision or determination by the Trustee, as the case may be.
SECTION 3.12 Judgments.
The Company may provide pursuant to Section 3.1 for Securities of any
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
Section 3.1 is of the essence and thereby agree that, to the fullest extent
possible under applicable law, judgments in respect of such Securities shall be
given in the Designated Currency. In such event, the obligation of the Company
to make payments in the Designated Currency of the principal of (and premium,
if any) and interest on such Securities shall, notwithstanding any payment in
any other Currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount of the Designated Currency that the Holder
receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other Currency (after any premiums and cost
of exchange) on the Business Day in the country of issue of the Designated
Currency immediately following the day on which such Holder receives such
payment. If the amount in the Designated Currency that may be so purchased for
any reason falls short of the amount originally due, the Company shall pay such
additional amounts as may be necessary to compensate for such shortfall, and
any
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obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their stated
maturity within one year, or
(iii) if the Securities of such series are
denominated and payable only in Dollars (except as
provided pursuant to Section 3.1) and such Securities are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Company, and the Company, in the case
of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in Dollars (except as provided pursuant
to Section 3.1) sufficient to pay and discharge the entire
indebtedness on
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such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
stated maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment,
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decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable as therein or
herein provided whether at its maturity or upon acceleration, redemption
or otherwise; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section 5.1 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the failure to pay when due any indebtedness for money
borrowed (including indebtedness under Securities other than that
series) with a principal amount then outstanding in excess of
$20,000,000 under any mortgage, indenture or instrument under which any
such indebtedness is issued or secured (including the Indenture), or any
other default which results in the acceleration of maturity of such
indebtedness, unless such indebtedness or acceleration shall have been
discharged or annulled within 10 days after due notice by the Trustee or
by Holders of at least 10% in principal amount of the Outstanding
Securities of that series; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect or (B) a decree or order
adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or a Significant Subsidiary or of any substantial part of its property,
or ordering the winding up or liquidation of its
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affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or any Significant
Subsidiary, or the filing by the Company or any Significant Subsidiary
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law now or hereafter in effect, or
the consent by the Company or any Significant Subsidiary to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of the Company or any Significant
Subsidiary, or the making by the Company or any Significant Subsidiary
of an assignment for the benefit of creditors, or the Company or any
Significant Subsidiary shall fail generally to pay its debts as they
become due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
For purposes of this Section 5.1 the term "Significant Subsidiary" shall
mean any Subsidiary (i) which, as of the close of the fiscal year of the
Company immediately preceding the date of any determination hereunder,
contributed more than 10% of the consolidated net operating revenues of the
Company and its Consolidated Subsidiaries, or (ii) the total net tangible
assets of which as of the close of such immediately preceding fiscal year
exceeded 10% of the Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in Section 5.01(6)
or (7), occurs and is continuing, then in every such case, unless the principal
of all of the Securities of such series shall have already become due and
payable, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount (or,
in the case of certain Securities which provide for less than the entire
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to this Section 5.2, such portion
of the principal amount as may be specified in the terms of that series of
Securities) and the interest accrued thereon of all of the Securities of that
series to be due and
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payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and interest accrued thereon shall become immediately due and
payable. If an Event of Default specified in Section 5.01(6) or (7) occurs and
is continuing, the principal amount (or portion thereof) of all the Securities
of that series shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Securities are denominated (except as
otherwise provided pursuant to Section 3.1) sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration shall have been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof
as shall be due and payable as a result of such declaration; and payment of the
portion of the principal thereof as shall have become due and payable as a
result of such declaration, together with interest, if
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any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days;
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security when due and payable whether at its
maturity or upon acceleration, redemption or otherwise; or
(3) default is made in the deposit of any sinking fund payment
when and as due by the terms of any 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 premium, if any) and interest, interest on
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding
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relative to the Company, or any other obligor upon the Securities or the
property of the Company, or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.7.
Subject to the provisions of Article Eight of this Indenture, nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.5 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.
In any proceeding brought by the Trustee (and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was
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taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
SECTION 5.6 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 premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any) and interest, respectively;
and
THIRD: To the Company.
SECTION 5.7 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 custodian, liquidator, assignee,
sequestrator, receiver, trustee, or other similar official, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred by the Trustee in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holder or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest on such Security on the due dates expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.9 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 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, 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.
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SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or bylaw
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall have determined that the action so
directed would not be unjustly prejudicial to the Holders of any
Securities of any series with respect to which the Trustee is the
Trustee not taking part in such direction,
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(4) the Trustee shall be indemnified as hereinafter provided.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any
Security on or after the due dates expressed in such Security (or, in the case
of redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the exercise of
any power herein granted to the Trustee, but will suffer and permit the
exercise of every such power as though no such law had been enacted.
SECTION 5.16 Duty to Accelerate.
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an Event of Default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
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(1) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series has occurred and is continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
pursuant to the provisions of Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
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such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of directors or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the interest
of the Holders of Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 5.1(4) with respect
to the Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
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(4) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such matters of fact as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) except for (i) a default under Sections 5.1 (1), (2) or
(3) hereof or (ii) any other event of which the Trustee has "actual
knowledge" and which event, with the giving of notice or the passage of
time or both, would constitute an Event of Default under this Indenture,
the Trustee shall not be deemed to have notice of any default or Event
of Default with respect to Securities of any series at the time
Outstanding unless specifically notified in writing of such event by the
Company or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series; as used herein, the term "actual
knowledge" means the actual fact or state of knowing, without any duty
to make any investigation with regard thereto.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent or such agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law and except as otherwise
provided herein. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, an subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to each
series of Securities which shall be eligible to serve in such capacity under
the Trust Indenture Act and having a combined capital and surplus (with its
direct parent) of at least $500,000,000. If such corporation or other Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.9, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.8(a) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security of
the series as to which the Trustee has a conflicting interest for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of
such series and accepted appointment in the manner required by Section 6.11,
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
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Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
Successor Trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6 and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
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or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery by an Authenticating Agent and a
certificate of authentication executed by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (together with its
direct parent) a combined capital and surplus of not less than $500,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 6.14, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments.
The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
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Pursuant to each appointment made under this Section 6.14, the
Securities of each series covered by such appointment may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
---------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signature
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after each
record date with respect to a regular interest payment date for each
series of Securities, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession and control of
the Company or of its paying agents regarding the names and addresses of
the Holders of such series as of such record date; provided, however,
that if Securities of any series shall have more than two regular
interest payment dates in each calendar year or shall not bear interest,
then such list with respect to such series of Securities will be
furnished to the Trustee semi-annually on such dates as may be agreeable
to the Trustee; and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; except that if the
Trustee is the sole registrar with respect to any series of Securities,
no such list need be furnished with respect to such series.
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SECTION 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as sole
Security Registrar, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 7.2(a),
or
(2) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.2(a), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.2(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
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(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after _________________________ of each
year commencing with the year 199____, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, a
brief report dated as of such ________________ with respect to any of the
following events which may have occurred within the previous 12 months (but if
no such event has occurred within such period, no report need be transmitted):
(1) its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 6.8(c);
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on the trust
estate or on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Securities Outstanding on
the date of such report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities which the
Trustee has not previously reported; and
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(7) any action taken by the Trustee in the performance
of its duties hereunder which it has not previously reported and which
in its opinion materially affects the Securities, or the Securities of
any series, except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities, on the trust estate or on property or funds held or
collected by it as Trustee and which it has not previously reported pursuant to
this Subsection, except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.4 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company with the
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conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities and the due and punctual performance and observance of
every covenant and obligation of the Company under this Indenture to be
performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation of the Company with or merger of the Company into
any other corporation or any conveyance, transfer or lease of the properties
and assets of the Company
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substantially as an entirety in accordance with Section 8.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter, except in the case of a lease of
its properties and assets substantially as an entirety, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants, agreements and obligations
of the Company for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if
such Events of Default are to be applicable to less than all series,
stating such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the
provisions of this Indenture, in respect of one or more series of
Securities, provided that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to
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such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
adversely affect the interest of the Holders of Securities of any series
in any respect.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the due date of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof, or reduce the amount of the principal
of any Security that would be due and payable upon a declaration of the
maturity thereof pursuant to Section 5.2, or change the place of payment
where, or the coin or Currency in which, any Security or any premium or
the interest thereon is denominated or payable (or, in the case of
certain Securities which provide for less than the entire principal
amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.2, reduce the amount of
principal payable upon such a declaration of acceleration of the
maturity thereof), or impair the right to institute suit for the
enforcement of any such payment on or after the due date thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage of the principal amount of
the Outstanding Securities of any series, the consent of whose Holders
is required for any such
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supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.10, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) 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 may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in the City of New York, for any series of
Securities, an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices to and
demands upon the Company in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the Company in a
written notice to the Trustee, such office or agency for all purposes shall be
the Corporate Trust Office of the Trustee. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee in the City of New
York, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 10.3 Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Paying Agent will promptly notify the Trustee
of the Company's action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or interest on
the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease;
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provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise 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
considered as a whole.
SECTION 10.5 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any respect to the
Holders.
SECTION 10.6 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and the Company shall have set aside on its books
adequate reserves with respect thereto (segregated to the extent required by
generally accepted accounting principles).
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SECTION 10.7 Limitation on Indebtedness Secured by a Mortgage.
So long as the Securities of any series shall remain Outstanding, the
Company covenants and agrees that neither it nor any Restricted Subsidiary will
create, assume, guarantee or suffer to exist any Indebtedness secured by a
Mortgage on any assets of the Company or any Restricted Subsidiary unless the
Company secures or causes such Restricted Subsidiary to secure the Securities
of that series equally and ratably with, or prior to, such secured
Indebtedness; provided, however, that this restriction shall not apply to
Indebtedness secured by:
(a) Mortgages on the property of any corporation which
Mortgages existed at the time such corporation became a Restricted
Subsidiary,
(b) Mortgages in favor of the Company or a Restricted
Subsidiary,
(c) Mortgages on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State or
political subdivision thereof, or in favor of any other country or any
political subdivision thereof, to secure payment pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost
of the construction or improvement of the property subject to such
Mortgages,
(d) Mortgages on any property hereafter acquired by the
Company or any Restricted Subsidiary, contemporaneously with such
acquisition or within 120 days thereafter, to secure or provide for the
payment of any part of the purchase price, construction or improvement
of such property, or Mortgages assumed by the Company or any Restricted
Subsidiary upon any property hereafter acquired by the Company or any
such Restricted Subsidiary which were existing at the time of such
acquisition, provided that the amount of any Indebtedness secured by any
such Mortgage created or assumed shall not exceed the cost to the
Company or such Restricted Subsidiary, as the case may be, of the
property covered by such Mortgage,
(e) Mortgages on the property of the Company or a Restricted
Subsidiary which are in existence on the date of issuance of the first
series of Securities under this Indenture,
(f) any extension, renewal or refunding (or successive
extension, renewal or refunding), in whole or in part, of any Mortgage
referred to in the foregoing clauses (a) through (e), inclusive, or of
any Indebtedness secured thereby, and
(g) any other Mortgage, other than Mortgages referred to in
the foregoing clauses (a) through (f), inclusive, so long as the
aggregate of all Indebtedness secured by Mortgages pursuant to this
clause (g) and the aggregate Value of the Sale and Lease-Back
Transactions in existence at such time (not including Sale and
Lease-Back Transactions
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as to which the Company has complied with Section 10.8(b)) does not
exceed 15% of Consolidated Net Tangible Assets.
For purposes of this Section 10.7 and Section 10.8 the following terms
shall have the following meanings:
(1) "Indebtedness" means (i) all items which in
accordance with generally accepted accounting principles would be
included in determining long-term liabilities representing borrowed
money or purchase money obligations as shown on the liability side of a
balance sheet (other than liabilities evidenced by obligations under
leases and contracts payable for broadcast rights), (ii) to the extent
not included in clause (i) above, indebtedness secured by any Mortgage
existing on property owned subject to such Mortgage whether or not the
indebtedness secured thereby shall have been assumed, and (iii) to the
extent not included in clauses (i) or (ii) above, contingent obligations
in respect of, or to purchase or otherwise acquire, any indebtedness of
others of the character described in clauses (i) and (ii) above
including, but not limited to, guarantees and endorsements (other than
for purposes of collection in the ordinary course of business of any
such indebtedness);
(2) "Mortgage" means and includes any mortgage, pledge,
lien, security interest, conditional sale or other title retention
agreement or other similar encumbrance;
(3) "Consolidated Net Tangible Assets" means total
consolidated assets of the Company and its Restricted Subsidiaries, less
(i) current liabilities of the Company and its Restricted Subsidiaries,
and (ii) the net book amount of all intangible assets of the Company and
its Restricted Subsidiaries.
(4) "Restricted Subsidiary" means each Subsidiary of
the Company as of the date hereof and each Subsidiary thereafter created
or acquired (unless expressly excluded by resolution of the Board of
Directors of the Company adopted before, or within 120 days following,
such creation or acquisition).
SECTION 10.8 Limitation on Sale and Lease-Back.
The Company covenants and agrees that neither it nor any Restricted
Subsidiary will enter into any arrangement with any Person (other than the
Company or a Restricted Subsidiary), or to which any Person is a party,
providing for the leasing to the Company, or a Restricted Subsidiary, for a
period, including renewals, of more than three years of any Principal Property
which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person (other than the
Company or a Restricted Subsidiary) to which funds have been or are to be
advanced by such Person on the security of such leased property (in this
Article Ten called a "Sale and Lease-Back Transaction") unless either:
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(a) The Company or such Restricted Subsidiary would be
entitled to create, assume, guarantee or suffer Indebtedness secured by
a Mortgage under any provision of clauses (a) through (e) of Section
10.7 or, pursuant to the provisions of Section 10.7, to incur
Indebtedness in a principal amount equal to or exceeding the Value of
such Sale and Lease-Back Transaction, secured by a Mortgage on the
property to be leased, without equally and ratably securing the
Securities; or
(b) The Company or such Restricted Subsidiary within four
months after the effective date of such Sale and Lease-Back Transaction
(whether made by the Company or a Restricted Subsidiary), applies to the
voluntary retirement of Indebtedness of the Company (which may include
Securities, provided that any series of Securities may only be redeemed
in accordance with the terms of such series) maturing by the terms
thereof more than one year after the original creation thereof and
ranking at least pari passu with the Securities (hereinafter in this
Section called "Funded Debt") an amount equal to the greater of (i) the
net proceeds of the sale of the property subject to the Sale and
Lease-Back Transaction and (ii) the Value of such Sale and Lease-Back
Transaction, less the principal amount of Securities delivered within
four months after the effective date of such arrangement, to the Trustee
for retirement and cancellation and the principal amount of other Funded
Debt voluntarily retired by the Company within such four-month period,
excluding retirements of Securities and other Funded Debt as a result of
conversions or pursuant to mandatory sinking fund or prepayment
provisions or by payment at maturity.
For purposes of Section 10.7 and this Section 10.8, the term "Value"
shall mean, with respect to a Sale and Lease-Back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale and Lease-Back
Transaction or (2) the fair value in the opinion of the Board of Directors of
such property at the time of entering into such Sale and Lease-Back
Transaction, in either case divided first by the number of full years of the
terms of the lease and then multiplied by the number of the full years of such
term remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 10.9 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate (executed by at least the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company) stating whether or not to the best knowledge
of the signers thereof the Company is in default in the performance and
observance of any of the Company's covenants and agreements contained in this
Indenture and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
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SECTION 10.10 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.4 to 10.8, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instances or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their stated
maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denominations for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities
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selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be the date for an installment of interest) accrued interest on, all
the Securities which are to be redeemed on that date.
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SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose due date is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant record date with
respect to such installments of interest according to their terms and the
provisions of Section 3.7. If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a specified place of payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to
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reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as provided pursuant to Section 3.1) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and, prior to or
concurrently with the delivery of such Officers' Certificate, will also deliver
to the Trustee any Securities to be so delivered. Not less than 45 days before
each sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.3 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
DEFEASANCE
SECTION 13.1 Applicability of Article.
If pursuant to Section 3.1 provision is made for the defeasance of
Securities of a series, and if the Securities of such series are denominated
and payable only in Dollars (except as provided pursuant to Section 3.1) then
the provisions of this Article shall be applicable except
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as otherwise specified as contemplated by Section 3.1 for Securities of such
series. Defeasance provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to Section 3.1.
SECTION 13.2. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to
Securities of any series on the 91st day after the applicable conditions set
forth below have been satisfied ("Defeasance") or (b) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Section 10.4, Section 10.5, Section 10.6, Section 10.7 and Section
10.8 with respect to Securities of any series (and, if so specified pursuant to
Section 3.1, any other restrictive covenant added for the benefit of such
series) ("Covenant Defeasance") at any time after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (as defined below) which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including any mandatory
sinking fund payments) of, and interest on, the Outstanding Securities
of such series on the respective Stated Maturities thereof.
(2) if the Securities of such series are then listed on the
New York Stock Exchange or any other securities exchange, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Company's exercise of its option under this Section would not
cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or, with regard
to any such event specified in Sections 5.1(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day);
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option
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had not been exercised, and, in the case of the Securities of such
series being Discharged, accompanied by a ruling to that effect received
from or published by the Internal Revenue Service.
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a Default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust shall
be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Securities of such series (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive
payment of the principal of and the interest on such Securities when such
payments are due, (B) the Company's obligations with respect to the Securities
of such series under Sections 3.5, 3.6, 10.2 and 13.3, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, and (D) this Article.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America or the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment
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of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 13.3. Deposited Moneys and U.S. Government Obligations to Be Held in
Trust.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.2 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 13.4 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.2 shall be revived and reinstated as though no
deposit had occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agency is permitted to apply all money
held in trust pursuant to Section 13.3 with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
SECTION 13.5 Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of
(premium, if any) and interest on the Securities of any series for which money
or U.S. Government Obligations have been deposited pursuant to Section 13.2.
The provisions of the last paragraph of Section 10.3 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Securities for
which money or U.S. Government obligations have been deposited pursuant to
Section 13.2.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
A. H. BELO CORPORATION
By:
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Name:
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Title:
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, Trustee
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By:
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Name:
--------------------------------
Title:
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