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TRIBUNE COMPANY,
Issuer
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
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INDENTURE
Dated as of January 1, 1997
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Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture dated as of January 1, 1997 between Tribune Company and Bank of
Montreal Trust Company
Trust Indenture
Act Section Indenture Section
--------------- -----------------
ss.310 (a)(1) ................................... 6.09
(a)(2) ................................... 6.09
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(a)(5) ................................... 6.09
(b) ................................... 6.08, 6.10
ss.311 (a) ................................... 6.13(a)
(b) ................................... 6.13(b)
(b)(2) ................................... 7.03(a)(2)
................................... 7.03(b)
ss.312 (a) ................................... 7.01, 7.02(a)
(b) ................................... 7.02(b)
(c) ................................... 7.02(b)
ss.313 (a) ................................... 7.03(a)
(b) ................................... 7.03(b)
(c) ................................... 7.03(a), 7.03(b)
(d) ................................... 7.03(c)
ss.314 (a) ................................... 7.04
(a)(4) ................................... 10.09
(b) ................................... Not Applicable
(c)(1) ................................... 1.02
(c)(2) ................................... 1.02
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 1.02
ss.315 (a) ................................... 6.01(a)
(b) ................................... 6.02
................................... 7.03(a)(6)
(c) ................................... 6.01(b)
(d) ................................... 6.01(c)
(d)(1) ................................... 6.01(a), 601(c)
(d)(2) ................................... 6.01(c)(2)
(d)(3) ................................... 6.01(c)(3)
(e) ................................... 5.14
ss.316 (a) ................................... 1.01
(a)(1)(A) ................................... 5.02, 5.12
(a)(1)(B) ................................... 5.02, 5.13
(a)(2) ................................... Not Applicable
(b) ................................... 5.08
(c) ................................... 1.04
ss.317 (a)(1) ................................... 5.03
(a)(2) ................................... 5.04
(b) ................................... 10.03
ss.318 (a) ................................... 1.07
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NOTE: This reconciliation and tie shall not, for any purpose,
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY.......................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions....................................................1
Act............................................................2
Affiliate......................................................2
Authenticating Agent...........................................2
Board of Directors.............................................2
Board Resolution...............................................2
Business Day...................................................2
Commission.....................................................2
Company........................................................3
Company Request or Company Order...............................3
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...........................................4
Event of Default...............................................4
Fixed Rate Security............................................4
Floating Rate Security.........................................4
Foreign Currency...............................................4
Global Security................................................4
Holder.........................................................4
Indebtedness...................................................4
Indenture......................................................4
Mortgage.......................................................4
Net Worth......................................................4
Officers' Certificate..........................................4
Opinion of Counsel.............................................5
Original Issue Discount Security...............................5
Outstanding....................................................5
Paying Agent...................................................6
Person.........................................................6
Predecessor Security...........................................6
Principal Property.............................................6
Redemption Date................................................6
Redemption Price...............................................6
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NOTE: This table of contents shall not, for any purpose,
deemed to be a part of the Indenture.
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Responsible Officer............................................6
Restricted Subsidiary..........................................7
Sale and Lease-Back Transaction................................7
Securities.....................................................7
Security Register..............................................7
Significant Subsidiary.........................................7
Subsidiary.....................................................7
Trustee........................................................7
Trust Indenture Act............................................7
Value..........................................................7
Vice President.................................................8
United States..................................................8
U.S. Government Obligations....................................8
SECTION 1.02. Compliance Certificates and Opinions...........................8
SECTION 1.03. Form of Documents Delivered to Trustee.........................9
SECTION 1.04. Acts of Holders................................................9
SECTION 1.05. Notices, Etc., to Trustee and Company.........................11
SECTION 1.06. Notice to Holders; Waiver.....................................11
SECTION 1.07. Conflict with Trust Indenture Act.............................12
SECTION 1.08. Effect of Headings and Table of Contents......................12
SECTION 1.09. Successors and Assigns........................................12
SECTION 1.10. Separability Clause...........................................12
SECTION 1.11. Benefits of Indenture.........................................12
SECTION 1.12. Governing Law.................................................12
SECTION 1.13. Legal Holidays................................................12
SECTION 1.14. Incorporators, Stockholders, Officers and
Directors Exempt from Individual Liability..................13
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally...............................................13
SECTION 2.02. Form of Trustee's Certificate of
Authentication.............................................14
SECTION 2.03. Securities Issuable in the Form of a
Global Security............................................14
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series..........................17
SECTION 3.02. Denominations.................................................20
SECTION 3.03. Execution, Authentication, Delivery
and Dating.................................................20
SECTION 3.04. Temporary Securities..........................................23
SECTION 3.05. Registration, Registration of Transfer
and Exchange...............................................23
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.................................................24
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SECTION 3.07. Payment of Interest; Interest Rights
Preserved..................................................25
SECTION 3.08. Persons Deemed Owners.........................................26
SECTION 3.09. Cancellation..................................................26
SECTION 3.10. Computation of Interest.......................................26
SECTION 3.11. Currency of Payments in Respect of
Securities.................................................27
SECTION 3.12. Judgments.....................................................27
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.......................28
SECTION 4.02. Application of Trust Money....................................29
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.............................................30
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment..............................................32
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee................................33
SECTION 5.04. Trustee May File Proofs of Claim..............................34
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities...................................35
SECTION 5.06. Application of Money Collected................................36
SECTION 5.07. Limitation on Suits...........................................36
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest............................37
SECTION 5.09. Restoration of Rights and Remedies............................37
SECTION 5.10. Rights and Remedies Cumulative................................37
SECTION 5.11. Delay or Omission Not Waiver..................................38
SECTION 5.12. Control by Holders............................................38
SECTION 5.13. Waiver of Past Defaults.......................................38
SECTION 5.14. Undertaking for Costs.........................................39
SECTION 5.15. Waiver of Stay or Extension Laws..............................39
SECTION 5.16. Duty to Accelerate............................................39
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities...........................40
SECTION 6.02. Notice of Defaults............................................41
SECTION 6.03. Certain Rights of Trustee.....................................42
SECTION 6.04. Not Responsible for Recitals or Issuance
of Securities..............................................43
SECTION 6.05. May Hold Securities...........................................43
SECTION 6.06. Money Held in Trust...........................................43
SECTION 6.07. Compensation and Reimbursement................................43
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SECTION 6.08. Disqualification; Conflicting Interests.......................44
SECTION 6.09. Corporate Trustee Required; Eligibility.......................51
SECTION 6.10. Resignation and Removal; Appointment of
Successor..................................................52
SECTION 6.11. Acceptance of Appointment by Successor........................53
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.....................................55
SECTION 6.13. Preferential Collection of Claims Against
Company....................................................55
SECTION 6.14. Appointment of Authenticating Agent...........................60
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders.......................................61
SECTION 7.02. Preservation of Information; Communications
to Holders.................................................62
SECTION 7.03. Reports by Trustee............................................63
SECTION 7.04. Reports by Company............................................65
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only
on Certain Terms...........................................66
SECTION 8.02. Successor Corporation Substituted.............................67
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent
of Holders.................................................67
SECTION 9.02. Supplemental Indentures with Consent
of Holders.................................................68
SECTION 9.03. Execution of Supplemental Indentures..........................70
SECTION 9.04. Effect of Supplemental Indentures.............................70
SECTION 9.05. Conformity with Trust Indenture Act...........................70
SECTION 9.06. Reference in Securities to Supplemental
Indentures.................................................70
ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal, Premium and
Interest...................................................70
SECTION 10.02. Maintenance of Office or Agency...............................71
SECTION 10.03. Money for Securities Payments To Be
Held in Trust..............................................71
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SECTION 10.04. Corporate Existence...........................................73
SECTION 10.05. Maintenance of Properties.....................................73
SECTION 10.06. Payment of Taxes and Other Claims.............................73
SECTION 10.07. Limitation on Indebtedness Secured
by a Mortgage..............................................73
SECTION 10.08. Limitation on Sale and Lease-Back.............................76
SECTION 10.09. Statement as to Compliance....................................77
SECTION 10.10. Waiver of Certain Covenants...................................77
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article......................................77
SECTION 11.02. Election to Redeem; Notice to Trustee.........................78
SECTION 11.03. Selection by Trustee of Securities
to Be Redeemed.............................................78
SECTION 11.04. Notice of Redemption..........................................78
SECTION 11.05. Deposit of Redemption Price...................................79
SECTION 11.06. Securities Payable on Redemption Date.........................79
SECTION 11.07. Securities Redeemed in Part...................................80
ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article......................................80
SECTION 12.02. Satisfaction of Sinking Fund Payments
with Securities............................................80
SECTION 12.03. Redemption of Securities for Sinking Fund.....................81
ARTICLE XIII
DEFEASANCE
SECTION 13.01. Applicability of Article......................................81
SECTION 13.02. Defeasance upon Deposit of Moneys or
U.S. Government Obligations................................82
SECTION 13.03. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust............................83
SECTION 13.04. Repayment to Company..........................................84
SIGNATURES AND SEALS.........................................................85
ACKNOWLEDGMENTS..............................................................85
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INDENTURE, dated as of January 1, 1997 between Tribune Company, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and Bank of Montreal Trust Company, a trust
company duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
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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
(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 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means, with respect to the Securities of any
series, any Person authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of such series.
"Board of Directors" means either the board of directors of the Company
or a duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of Chicago,
State of Illinois or The City of New York, State of New York, 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.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
and Chief Executive Officer, or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"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
10.07.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, New York, at which at any particular time its corporate
trust business shall be administered, which office at the date of execution of
this Indenture is located at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Corporation" includes corporations, associations, companies, business
trusts and limited partnerships.
"Currency" means Dollars or Foreign Currency.
"Depository" means unless otherwise specified by the Company pursuant
to either Sections 2.03 or 3.01, with respect to Securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New York,
New York, or any successor thereto registered under the Securities and Exchange
Act of 1934, as amended, or other applicable statute or regulation.
"Discharged" has the meaning specified in Section 13.02.
"Dollar" or "$" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
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"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 5.01.
"ixed 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 3.01.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group of
countries.
"Global Security" means a Security issued to evidence all or a part of
any series of Securities which is executed by the Company and authenticated and
delivered by the Trustee to 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 10.07.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
"Mortgage" has the meaning specified in Section 10.07.
"Net Worth" has the meaning specified in Section 10.07.
"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.
-4-
"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 Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
the declaration of acceleration of the maturity thereof pursuant to Section
5.02.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(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 redemp tion 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 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security which shall be deemed to be
Outstanding for such purposes shall be the portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of such time and (b) 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
-5-
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partner ship, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing or printing plant,
warehouse, office building, power plant or transmission facility owned by the
Company or any Subsidiary or any property or right owned by or granted to the
Company or any Subsidiary and used or held for use in the newspaper, newsprint,
radio or television business conducted by the Company or any Subsidiary, except
any manufacturing or printing plant, warehouse, office building, power plant or
transmission facility or property or right which in the opinion of the Board of
Directors of the Company is not of material importance to the total business
conducted by the Company and its 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
-6-
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 10.07.
"Sale and Lease-Back Transaction" has the meaning specified in Section
10.08.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 3.05.
"Significant Subsidiary" has the meaning specified in Section 5.01.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean and include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" shall mean and include each such Person, and
"Trustee," as used with respect to the Securities of any series, shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 9.05.
"Value" has the meaning set forth in Section 10.08.
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"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"United States" means the United States of America (including the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"U.S. Government Obligations" has the meaning specified in Section
13.02.
SECTION 1.02. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate (other than any Officers' Certificate delivered
pursuant to Section 10.09) 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 investiga tion 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.
-8-
SECTION 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Any certificate or opinion of an officer or opinion of counsel may be
based, insofar as it relates to any accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such accounting matters are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage of Holders of one or more series then Outstanding may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or
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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 instru ments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix a record date for the purpose of determining
the identity of the Holders entitled to participate in any Act authorized or
permitted under this Indenture, which record date shall be the later of (i) 10
days prior to the first solicitation of the written instruments required for
such Act or (ii) the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 7.01. If such a record
date is fixed, the Persons who were the Holders of the Securities of the
affected series at the close of business on such record date (or their
duly authorized proxies) shall be the only Persons entitled to execute written
instruments with respect to such Act, or to revoke any written instrument
previously delivered, whether or not such Persons shall continue to be Holders
of the Securities of such series after such record date. No such written
instrument shall be valid or effective for more than 150 days after such record
date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the
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Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 1.05. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Secretary at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, 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 1.06. 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
Holders of Floating Rate Securities regarding the determination of a periodic
rate of interest, if such notice is required pursuant to Section 3.01, shall be
sufficiently given if given in the manner specified pursuant to Section 3.01. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. 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.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Section 318(c) of the Trust Indenture Act, the imposed
duties shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provisions shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Illinois except as may be otherwise
required by mandatory provisions of law.
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SECTION 1.13. Legal Holidays.
--------------
Unless otherwise specified pursuant to Section 3.01, in any case where
the due date of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a Business Day then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day 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 2.01. Forms Generally.
---------------
The Securities of each series shall be in substantially the form or
forms as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or with
any rules of any securities exchange or all as may, consistently herewith, be
determined by the officers executing such Securities to be necessary or
appropriate, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action together with a true
and correct copy of the form of the Securities of such series approved by or
pursuant
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to such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
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 2.03. Securities Issuable in the Form of a Global
-------------------------------------------
Security.
--------
(a) If the Company shall establish pursuant to Section 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order delivered
to the Trustee thereunder, authenticate and 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 GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY
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OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY."
(b) Notwithstanding any other provision of this Section 2.03 or of
Section 3.05, unless otherwise provided in the Global Security, a Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 3.05, only to the Depository or another nominee of the Depository for
such Global Security, or to a successor Depository for such Global Security
selected or approved by the Company or to a nominee of such successor
Depository. Except as provided below, owners solely of beneficial interests in a
Global Security shall not be entitled to receive physical delivery of the
Securities represented by such Global Security and will not be considered the
Holders thereof for any purpose under the Indenture.
(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 ineligi bility, the Company's election pursuant to Section
3.01(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 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
-15-
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 3.01 with respect
to Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depository a new Security or Securities of the same
series of like tenor and terms and of any authorized denominations as requested
by such Person or the Depository in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and (2)
to such Depository a new Global Security of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Securities
delivered to Holders thereof.
(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
-16-
an interest thereof given through the Holder hereof. Except as provided above,
owners of beneficial interest in a Global Security will not be entitled to
receive physical delivery of Securities in certificated registered form and will
not be considered the Holders thereof for any purpose under the Indenture. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other govern mental charge payable in connection therewith. Upon the exchange of
a Global Security for individual Securities, such Global Security shall be
cancelled by the Trustee. Securities issued in exchange for a Global Security
pursuant to this Section 2.03 shall be registered in such names and in such
authorized denominations as the Depository for such Global Security, pursuant to
the instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
(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 3.03 by the Company
with respect to the authentication, exchange, endorsement or delivery or
redelivery of a Global Security shall be in writing, signed by any one of the
officers enumerated under the definition of "Company Order" contained in Section
1.01 or by any officer authorized by a previously delivered Company Order, but
need not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series:
-17-
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.03, 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the 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 Chicago,
where the principal of (and premium, if any) and interest on Securities of
the series shall be payable;
(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;
-18-
(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 5.02
or the method by which such portion shall be determined; and
(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 additional Events of Default or covenants provided for with
respect to Securities of the series or any Events of Default or covenants
herein specified which shall not be applicable to the Securities of the
series;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of a Global
-19-
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; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. All Securities of any series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
and set forth in such Officer's Certificate or in any such indenture
supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof and shall be payable
only in Dollars.
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SECTION 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and 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 2.01 and 3.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that:
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities conform
to the requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the form of such Securities has been established in conformity
with the provisions of this Indenture;
(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
supple mental indenture have been duly authorized by all necessary corporate
action of the Company, such
-21-
supplemental indenture has been duly executed and delivered by the Company
and, assuming due authoriza tion, 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
(6) the amount of Outstanding Securities of such series, together with
the amount of such Securities, does not exceed any limit established under
the terms of this Indenture on the amount of Securities of such series that
may be authenticated and delivered.
In the event that all Securities of a series are not issued at the same
time, the Trustee shall authenticate and deliver the Securities of such series
executed and delivered by the Company for original issuance upon receipt of an
order of the Company (which need not comply with Section 1.02 hereof), signed by
an officer or employee of the Company identified to the Trustee in an Officers'
Certificate, if the Trustee has previously received the Company Order and
Opinion of Counsel referred to in the third paragraph of this Section 3.03 with
respect to the issuance of any Securities of such series.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there
-22-
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company or the Trustee shall keep a register (the "Security
Register") in which, subject to such reasonable regulations as the Company or
the Trustee may prescribe, the Company or the Trustee shall provide for the
registration of Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency designated by the Company for that series, the
Company shall execute, and the Trustee shall authenticate and 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.
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At the option of the Holder, subject to Section 2.03, Securities of any
series may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, 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 registra tion of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company or any registrar with respect to such series of
Securities, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
Depository's records relating to or payment made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Company or to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new
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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.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any interest payment date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the record date (as hereinafter defined) for such
interest notwithstanding the cancellation of such Security upon the registration
of transfer or exchange subsequent to the record date and prior to such interest
payment date; provided, however, that if and to the extent that the Company
shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the Persons in whose names
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outstanding Securities are registered at the close of business on a subsequent
record date established by notice given by mail by and on behalf of the Company
to the Holders of Securities not less than fifteen days preceding such
subsequent record date, such record date to be not less than ten days preceding
the date of payment of such defaulted interest. The term "record date" as used
in this Section 3.07 with respect to any regular interest payment date shall
mean such day preceding such interest payment date as may have been established
as the record date with respect to an interest payment date for Securities of
such series in a Board Resolution in accordance with Section 3.01 hereof. The
Company may also make payment of any defaulted interest in any other lawful
manner not inconsistent with the requirements of any securities exchange in
which the Securities may be listed, and upon such notice as may be required by
such exchange if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this sentence, such manner of payment shall be
deemed practicable by the Trustee.
SECTION 3.08. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered to
any Authenticating Agent, such Securities shall be promptly cancelled by such
Authenticating Agent and forwarded to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided that the Trustee shall not
be required to dispose of securities in a manner deemed impracticable by the
Trustee.
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SECTION 3.10. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 3.11. Currency of Payments in Respect of Securities.
---------------------------------------------
(a) Except as otherwise specified pursuant to Section 3.01, payment of
the principal of (and premium, if any) and interest on Securities of any series
will be made in Dollars.
(b) For purposes of any provision of the indenture where the Holders of
Outstanding Securities may perform an Act which requires that a specified
percentage of the Outstanding Securities of all series perform such Act and for
purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Securities of
all series in respect of which moneys are to be disbursed ratably, the principal
of (and premium, if any) and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in Dollars based upon exchange rates
determined as specified pursuant to Section 3.01 for Securities of such series,
as of the date for determining whether the Holders entitled to perform such Act
have performed it, or as of the date of such decision or determination by the
Trustee, as the case may be.
(c) Any decision or determination to be made by the Trustee regarding
exchange rates may be made instead by an agent appointed by the Trustee and
acceptable to the Company; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be acceptable to
the Company and shall, in the opinion of the Company and the Trustee at the time
of such appointment, require such agent to make such determina tion by a method
consistent with the method provided pursuant to Section 3.01 for the making of
such decision or determination. All decisions and determinations of the Trustee
or the agent regarding exchange rates shall be in its sole discretion and shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company and all Holders of the Securities.
SECTION 3.12. Judgments.
---------
The Company may provide pursuant to Section 3.01 for Securities of any
series that the obligation, if any, of the Company to pay the principal of (and
premium, if any) and interest on the Securities of any series in a Foreign
Currency or Dollars (the "Designated Currency") as may be specified pursuant to
Section 3.01 is of the essence and thereby agree that, to the
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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,
notwith standing any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount of the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premiums and cost of exchange) on the Business Day in the
country of issue of the Designated Currency immediately following the day on
which such Holder receives such payment. If the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall, and any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture, with respect to the Securities of any series (if all
series issued under this Indenture are not to be affected), shall upon Company
Request cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their stated maturity
within one year, or
(iii) if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section
3.01) and such Securities are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in Dollars sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the stated maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series here under, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Trustee to any Authenticat ing Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive.
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SECTION 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(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
5.01 specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the
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Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or (B) a decree or order adjudging the
Company or any Significant Subsidiary a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or a Significant
Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any Significant
Subsidiary to the entry of a decree or order for relief in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in effect
or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any Significant Subsidiary, or the filing by the
Company or any Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law
now or hereafter in effect, or the consent by the Company or any
Significant Subsidiary to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of the Company or any
Significant Subsidiary, or the making by the Company or
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any Significant Subsidiary of an assignment for the benefit of creditors,
or the Company or any Significant Subsidiary shall fail generally to pay
its debts as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
For purposes of this Section 5.01 the term "Significant Subsidiary"
shall mean any Subsidiary (i) which, as of the close of the fiscal year of the
Company immediately preceding the date of any determination hereunder,
contributed more than 7% of the consolidated gross operating revenues of the
Company and its Subsidiaries, or (ii) the Net Worth of which (determined in a
manner consistent with the manner of determining consolidated Net Worth of the
Company and its Subsidiaries) as of the close of such immediately preceding
fiscal year exceeded 7% of the consolidated Net Worth of the Company and its
Subsidiaries.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding, occurs and is continuing, then in every such case, unless the
principal of all of the Securities of such series shall have already become due
and payable, the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount
(or, in the case of certain Securities which provide for less than the entire
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to this Section 5.02, such portion
of the principal amount as may be specified in the terms of that series of
Securities) and the interest accrued thereon of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) and interest accrued thereon shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum in the
Currency in which such Securities are denominated (except as otherwise
provided pursuant to Section 3.01) sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration shall have been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such declaration; and payment of the portion of
the principal thereof as shall have become due and payable as a result of such
declaration, together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security when due and payable whether at its maturity or upon
acceleration, redemption or otherwise;
(3) default is made in the deposit of any sinking fund payment when and
as due by the terms of any Security,
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.
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SECTION 5.04. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company, or any other obligor upon
the Securities or the property of the Company, or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Subject to the provisions of Article Eight of this Indenture, nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production
-35-
thereof in any proceeding relating thereto, and any such proceed ing instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
In any proceeding brought by the Trustee (and also in any proceeding
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was taken, and it shall
not be necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article 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
6.07;
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 5.07. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a custodian, liquidator, assignee, sequestrator,
receiver, trustee, or other similar official, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of 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 5.08. Unconditional Right of Holders to Receive
-----------------------------------------
Principal, Premium and Interest.
-------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the due dates 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 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies
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of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acqui escence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
pace 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.
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SECTION 5.13. Waiver of Past Defaults.
-----------------------
Subject to Section 5.02, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may 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.
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
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the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
SECTION 5.16. Duty to Accelerate.
------------------
The Trustee shall be under no duty to accelerate the debt hereunder or
to institute any proceedings unless it knows or in the exercise of reasonable
diligence should have known of the existence of an event of default hereunder.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(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 of
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.
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(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 other wise 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 reason able grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
-41-
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 5.01(4) with respect to the Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolu tion, 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;
(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
-42-
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such matters of fact as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) except for (i) a default under Sections 5.01 (1), (2) or (3) hereof
or (ii) any other event of which the Trustee has "actual knowledge" and
which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default with
respect to Securities of any series at the time Outstanding unless
specifically notified in writing of such event by the Company or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series; as used herein, the term "actual knowledge"
means the actual fact or state of knowing, without any duty to make any
investigation with regard thereto.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and 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.
-43-
SECTION 6.05. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent or such agent.
SECTION 6.06. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law and except as otherwise
provided herein. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation in
Dollars for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disburse ments 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.
SECTION 6.08. Disqualification; Conflicting Interests.
---------------------------------------
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after
-44-
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities of that series in
the manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of, that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series or other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures (or any series of securities issuable thereunder) which
are so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other series or under
such other indenture or indentures, or
-45-
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other indenture
or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is
an obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls, is directly or
indirectly controlled by, or is under direct or indirect common control
with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the busi ness of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons; or 10% or more of
the voting securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner
-46-
or executive officer thereof, or is beneficially owned, collectively, by
any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined) 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on the date of default upon the Securities of
such series or any anniversary of such default while such default shall be
continuing, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or xxxxxx vator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting interest
under paragraph (6), (7) or (8) of this Subsection. As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator or xxxxx mentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after the
date of such default upon the Securities of such series and annually in
each succeeding year that the Securities of such series remain in default,
the Trustee shall make a check of its holdings of such securities in any of
the above-mentioned capacities as of such May 15. If the Company fails to
make payment in full of the principal of (or premium, if any) or interest
on any of the Securities when and as the same becomes due and payable, and
such failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings
-47-
of such securities in any of the above mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this Subsection.
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) and (6) of Section 6.13(b), the Trustee shall be or shall become a
creditor of the Company.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraph (1) of this Subsection, Sections 5.12 and
5.13 and the definition of the term "Outstanding," the term "series of
securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the indenture trustee, or otherwise take action pursuant to a vote of
such holders, separately from holders of another such series, provided that
"series of securities" or "series" shall not include any series of securities
issuable under an indenture if all such series rank equally and are wholly
unsecured.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security
-48-
which it holds as collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in Clause (ii) above, or (B) any
security which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (C) any security which it holds as
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "Person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer,
-49-
the cashier, the secretary and the treasurer of a corporation, and any
individual customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not include
the chairman of the board of directors.
(7) The term "default" shall mean, with respect to the Securities of
any series, an Event of Default in respect thereof (exclusive of any period
of grace or requirement of notice).
(e) Except in the case of a default in the payment of the principal of
(and premium, if any) or interest on the Securities of any series, or in the
payment of any sinking fund or analogous payment, the Trustee shall not be
required to resign as provided by this Section if the Trustee shall have
sustained the burden of proving, on application to the Commission and after
opportunity for hearing thereon, that:
(1) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(2) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of the Holders of the Securities of the applicable
series.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise.
(f) The percentages of voting securities and other securities specified
in this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of voting securities of the Trustee, the
Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to
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evidences of indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind of security.
(4) The term "outstanding" means those securities issued and not held by
or for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest
or otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same right and privileges; provided, however, that, in
the case of secured evidences of Indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute series' different classes and provided, further, that, in the
case of unsecured evidences of indebtedness, differences in the interest
rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to each
series of Securities which shall be either (i) a corporation, bank or trust
company organized and doing business
-51-
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by United States or Federal or
State authority or (ii) a corporation or other Person organized and doing
business under the laws of any other government which is permitted to act as
Trustee pursuant to any rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers and subject to supervision or
examination by an authority of such government, or a political subdivision
thereof, substantially equivalent to the supervision or examination applicable
to the institution described in clause (i) above, in each case having a combined
capital and surplus (with its direct parent) of at least $50,000,000 and its
Corporate Trust Office in Chicago, Illinois or New York, New York, if there
shall be such a corporation or Person in such location willing to act upon or
customary and reasonable terms. 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 6.09, 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 6.08(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 6.09 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
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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.
(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
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the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for any act or failure to
act on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture, and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such Successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder 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 corpora tion 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
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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.
-------------------------------------------------
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within four months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in special account
for the benefit of the Trustee individually, the Holders of the Securities and
the holders of other indenture securities, as defined in Subsection (c) of this
Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal, premium, if
any, or interest, effected after the beginning of such four months' period
and valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds from the disposition of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
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pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security at
the time of such sub stitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applic able State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
-57-
reorganization pursuant to the Federal Bankruptcy Act or applic able State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bank ruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due considera tion in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resigna tion or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898, or any
amendment thereto enacted prior to November 6, 1978, all references above to
periods of three months shall be deemed to be references to periods of four
months.
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(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebted ness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, accep tances or obligations which fall within
the classification of self-liquidating paper, as defined in Subsection (c)
in this Section.
(c) For the purposes of this Section 6.13 only:
(1) the term "default" means any failure to make payment in full of the
principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which
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indenture and as to which securities the Trustee is also trustee, (ii)
which contains provisions substan tially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title
11 of the United States Code.
SECTION 6.14. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Out standing the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.06 and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery by an Authenticating Agent and a certificate of
authentication executed by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the
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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 $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.14, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or xxxxxxx dation 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 Authen ticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authen ticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14, and the
Trustee shall be entitled to be reimbursed for such payments.
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The provisions of Sections 3.08, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
Pursuant to each appointment made under this Section 6.14, the
Securities of each series covered by such appointment may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an 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 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 15 days after each record date with
respect to a regular interest payment date for each series of Securities,
a list, in such form as the Trustee may reasonably require, containing all
the information in the possession and control of the Company or of its
paying agents regard ing 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;
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except that if the Trustee is the sole registrar with respect to any series of
Securities, no such list need be furnished with respect to such series.
SECTION 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as sole Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communi cation which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(2) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such appli cants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
7.02(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
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contrary to the best interest of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
7.02(b).
SECTION 7.03. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year com mencing with the year
1994, 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
May 15 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 6.09 and its qualifications under
Section 6.08, 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 6.08(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
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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
(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 6.02.
(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
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Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Com mission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or, if the Company
is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
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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 supple mental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the due and punctual performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation of the Company with or merger of the Company
into any other corporation or any conveyance, trans fer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series, stating such Events
of Default are expressly being included solely to be applicable to such
series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable as to principal, and with or without
interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture, in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
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(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 supple ment any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action shall not adversely affect the
interest of the Holders of Securities of any series in any material
respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the due date of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
redemption thereof, or reduce the amount of the principal of any Security
that would be due and payable upon a declaration of the maturity thereof
pursuant to Section 5.02, or change the place of payment where, or the coin
or Currency in which, any Security or any premium or the interest thereon
is denominated or payable (or, in the case of certain Securities which
provide for less than the entire principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.02, reduce the amount of principal payable upon such a
declaration of acceleration of the maturity thereof), or impair the right
to institute suit for the enforcement of any such payment on or after the
due
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date thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage of the principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, 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 9.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supple mental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 9.05. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter pro vided 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 10.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the City of Chicago, Illinois, 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 Chicago,
Illinois, and the Company hereby appoints the Trustee
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as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 10.03. Money for Securities Payments To Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Paying Agent will promptly notify the Trustee of the
Company's action or failure so to act.
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
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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; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.04. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Sub sidiary 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
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as
a whole.
SECTION 10.05. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order 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
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maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Company or of the
Subsidiary concerned, desirable in the conduct of its business or the business
of any Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 10.06. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
SECTION 10.07. 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,
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(d) Mortgages on any property hereafter acquired by the Company or any
Restricted Subsidiary, contem poraneously with such acquisition or within
120 days thereafter, to secure or provide for the payment of any part of
the purchase price 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) 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 (d), inclusive, or of any Indebtedness
secured thereby, and
(f) any other Mortgage, other than Mortgages referred to in the
foregoing clauses (a) through (e), inclusive, so long as the aggregate of
all Indebtedness secured by Mortgages pursuant to this clause (f) and the
aggregate Value of the Sale and Lease-Back Transactions in existence at
such time (not including Sale and Lease-Back Transactions as to which the
Company has complied with Section 10.08(b)) does not exceed 10% of the
Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries.
For purposes of this Section 10.07 the following terms shall have the
following meanings:
(1) "Indebtedness" means (i) all items which in accordance with
generally accepted accounting prin ciples would be included in determining
long-term liabilities representing borrowed money and 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, pledge or lien existing on property
owned subject to such mortgage, pledge or lien, whether or not the
indebtedness secured thereby shall have been assumed, and (iii) to the
extent not included in clauses (i) and (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
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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 Consolidated Subsidiaries, less (i) current
liabilities of the Company and its Consolidated Subsidiaries, (ii)
contracts payable for broadcast rights, (iii) the net book amount of all
intangible assets of the Company and its Consolidated Subsidiaries, (iv)
appropriate amounts to account for minority interests of other persons
holding stock in Subsidiaries and (v) invest ments in Subsidiaries (other
than Restricted Subsidiaries) aggregating in excess of 10% of the Net Worth
of the Company and its Consolidated Subsidiaries;
(4) "Net Worth" means the aggregate amount of stockholders' investment
as determined in accordance with generally accepted accounting principles;
and
(5) "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 10.08. Limitation on Sale and Lease-Back.
---------------------------------
The Company covenants and agrees that neither it nor any Subsidiary will
enter into any arrangement with any Person (other than the Company or a
Subsidiary), or to which any Person is a party, providing for the leasing to the
Company, or a 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 Subsidiary to such Person or to any other Person (other
than the Company or a 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:
(a) The Company or such 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 10.07 or, pursuant to the provisions
of Section 10.07, to incur Indebtedness in a principal amount equal to or
exceeding the Value of such Sale and Lease-Back
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Transaction, secured by a Mortgage on the property to be leased, without
equally and ratably securing the Securities; or
(b) The Company within four months after the effective date of such
Sale and Lease-Back Transaction (whether made by the Company or a
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 10.07 and this Section 10.08, 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 10.09. 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 10.04 to 10.08, 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 11.01. Applicability of Article.
------------------------
Securities of any series which are redeemable before their stated
maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
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selection for redemption of portions (equal to the minimum authorized
denominations for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption.
--------------------
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.
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SECTION 11.05. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be the date for an installment of interest) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
due date is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant record date with respect to such
installments of interest according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a specified place of payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized 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.
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ARTICLE XII
SINKING FUNDS
SECTION 12.01. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such
series are denominated (except as
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provided pursuant to Section 3.01) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and, prior to or concurrently with the delivery of such Officers'
Certificate, will also deliver to the Trustee any Securities to be so delivered.
Not less than 45 days before each sinking fund pay ment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE XIII
DEFEASANCE
SECTION 13.01. Applicability of Article.
------------------------
If pursuant to Section 3.01 provision is made for the defeasance of
Securities of a series, and if the Securities of such series are denominated and
payable only in Dollars (except as provided pursuant to Section 3.01) then the
provisions of this Article shall be applicable except as otherwise specified as
contemplated by Section 3.01 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign Currency may be
specified pursuant to Section 3.01.
SECTION 13.02. Defeasance upon Deposit of Moneys or U.S. Government
----------------------------------------------------
Obligations.
-----------
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to
Securities of any series on the 91st day after the applicable conditions set
forth below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Section
8.01, Section 10.04, Section 10.05, Section 10.06, Section 10.07 and Section
10.08 with respect to Securities of any series (and, if so specified pursuant to
Section 3.01, any other restrictive covenant added for the benefit of such
series) at any time after the applicable conditions set forth below have been
satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) which through the payment of interest and
principal in
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respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient in the opinion (with respect to
(ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of, and interest on, the Outstanding
Securities of such series on the dates such installments of interest or
principal are due;
(2) if the Securities of such series are then listed the New York Stock
Exchange, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option under this
Section would not cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit) which, with
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section and will
be subject to Federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not
been exercised, and, in the case of the Securities of such series being
Discharged, accompanied by a ruling to that effect received from or
published by the Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive
payment of the principal of and the interest on such Securities when such
payments are due, (B) the Company's obligations with respect to the Securities
of such series under Sections 3.05, 3.06, 10.02 and 13.03 and (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America or the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
SECTION 13.03. Deposited Moneys and U.S. Government Obligations
------------------------------------------------
to Be Held in Trust.
-------------------
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 13.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 13.04. Repayment to Company.
--------------------
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any money or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of
(premium, if any) and interest on the Securities of any series for which money
or U.S. Government Obligations have been deposited pursuant to Section 13.02.
The provisions of the last paragraph of Section 10.03 shall apply to
any money held by the Trustee or any Paying Agent under this Article that
remains unclaimed for two years after the Maturity of any series of Securities
for which money or U.S. Government obligations have been deposited pursuant to
Section 13.02.
-----------------------
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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.
TRIBUNE COMPANY
[Seal]
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title:
Attest:
/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title:
BANK OF MONTREAL TRUST
COMPANY, Trustee
[Seal]
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Asst. Vice President
Attest:
/s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Asst. Secretary
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