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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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Current Report Pursuant to Section 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report Commission file number
October 24, 2000 1-6686
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THE INTERPUBLIC GROUP OF COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-1024020
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1271 Avenue of the Americas, New York, New York 10020
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 399-8000
Item 5. Other Events.
On October 20, 2000, The Interpublic Group of Companies completed the issuance
and sale of $500 million principal amount of senior unsecured notes due 2005.
The notes bear an interest rate of 7.875% per annum. The Company used the net
proceeds of approximately $495.5 million from the sale of the notes to repay
outstanding indebtedness under its credit facilities. The notes have been
registered under the Securities Act of 1933, as amended.
Exhibits.
99.1 Senior Debt Indenture dated as of October 20, 2000, relating
to the 7.875% Notes due 2005
99.2 Underwriting Agreement dated as of October 17, 2000, relating
to the 7.875% Notes due 2005
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
Date: October 24, 2000 By: /s/ Nicholas J. Camera
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Nicholas J. Camera
SENIOR VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY
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THE INTERPUBLIC GROUP OF COMPANIES, INC.
and
THE BANK OF NEW YORK
Trustee
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Senior Debt Indenture
Dated as of October 20, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE 1 Definitions and Other Provisions of General Application
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Section 1.01. Definitions 3
Section 1.02. Compliance Certificates and Opinions 14
Section 1.03. Form of Documents Delivered to Trustee 15
Section 1.04. Acts of Holders 16
Section 1.05. Notices, Etc., to Trustee and Company 18
Section 1.06. Notice to Holders; Waiver 18
Section 1.07. Conflict with Trust Indenture Act 19
Section 1.08. Effect of Headings and Table of Contents 19
Section 1.09. Successors and Assigns 19
Section 1.10. Separability Clause 19
Section 1.11. Benefits of Indenture 19
Section 1.12. Governing Law 19
Section 1.13. Legal Holidays 19
Section 1.14. No Recourse Against Others 20
Section 1.15. Judgment Currency 20
ARTICLE 2 Security Forms
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Section 2.01. Forms Generally 21
Section 2.02. Form of Face of Security 21
Section 2.03. Form of Reverse of Security 25
Section 2.04. Form of Trustee's Certificate of Authentication 31
Section 2.05. Securities in Global Form 31
Section 2.06. Form of Legend for the Securities in Global Form 32
ARTICLE 3 The Securities
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Section 3.01. Amount Unlimited; Issuable in Series 32
Section 3.02. Denominations 36
Section 3.03. Execution, Authentication, Delivery and Dating 36
Section 3.04. Temporary Securities 38
Section 3.05. Registration, Registration of Transfer and Exchange 39
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities 42
Section 3.07. Payment of Interest; Interest Rights Preserved 43
Section 3.08. Persons Deemed Owners 44
Section 3.09. Cancellation 45
Section 3.10. Computation of Interest 45
Section 3.11. CUSIP Number 45
Section 3.12. Wire Transfers 45
Section 3.13. Original Issue Discount 45
ARTICLE 4 Satisfaction and Discharge
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Section 4.01. Satisfaction and Discharge of Indenture 46
Section 4.02. Application of Trust Money 47
ARTICLE 5 Remedies
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Section 5.01. Events of Default 47
Section 5.02. Acceleration of Maturity; Rescission and Annulment 49
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee 50
Section 5.04. Trustee May File Proofs of Claim 51
Section 5.05. Trustee May Enforce Claims Without Possession
of Securities 52
Section 5.06. Application of Money Collected 52
Section 5.07. Limitation on Suits 53
Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest 54
Section 5.09. Restoration of Rights and Remedies 54
Section 5.10. Rights and Remedies Cumulative 54
Section 5.11. Delay or Omission Not Waiver 54
Section 5.12. Control by Holders 54
Section 5.13. Waiver of Past Defaults 55
Section 5.14. Undertaking for Costs 55
ARTICLE 6 The Trustee
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Section 6.01. Certain Duties and Responsibilities of the Trustee 56
Section 6.02. Notice of Defaults 56
Section 6.03. Certain Rights of Trustee 56
Section 6.04. Not Responsible for Recitals or
Issuance of Securities 58
Section 6.05. May Hold Securities 59
Section 6.06. Money Held in Trust 59
Section 6.07. Compensation and Reimbursement 59
Section 6.08. Disqualification; Conflicting Interests 60
Section 6.09. Corporate Trustee Required; Eligibility 60
Section 6.10. Resignation and Removal; Appointment of Successor 60
Section 6.11. Acceptance of Appointment by Successor 62
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business 63
Section 6.13. Preferential Collection of Claims Against Company 64
Section 6.14. Appointment of Authenticating Agent 64
Section 6.15. Compliance with Tax Laws 66
ARTICLE 7 Holders' Lists and Reports by Trustee and Company
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Section 7.01. Company to Furnish Trustee Names and Addresses
of Holders 66
Section 7.02. Preservation of Information;
Communications to Holders 66
Section 7.03. Reports by Trustee 68
Section 7.04. Reports by Company 68
ARTICLE 8 Consolidation, Merger, Lease, Sale or Transfer
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Section 8.01. When Company May Merge, Etc. 69
Section 8.02. Opinion of Counsel 70
Section 8.03. Successor Corporation Substituted 70
ARTICLE 9 Supplemental Indentures
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Section 9.01. Supplemental Indentures Without Consent of Holders 70
Section 9.02. Supplemental Indentures with Consent of Holders 72
Section 9.03. Execution of Supplemental Indentures 73
Section 9.04. Effect of Supplemental Indentures 73
Section 9.05. Conformity with Trust Indenture Act 74
Section 9.06. Reference in Securities to Supplemental Indentures 74
ARTICLE 10 Covenants
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Section 10.01. Payments of Securities 74
Section 10.02. Maintenance of Office or Agency 74
Section 10.03. Corporate Existence 75
Section 10.04. Payment of Taxes and Other Claims 75
Section 10.05. Maintenance of Properties 75
Section 10.06. Compliance Certificates 76
Section 10.07. Waiver of Stay, Extension or Usury Laws 76
Section 10.08. Money for Securities Payments to Be Held in Trust 77
Section 10.09. Limitations on Liens 78
Section 10.10. Limitations on Sale and Lease-back Transactions 79
Section 10.11. Waiver of Certain Covenants 80
ARTICLE 11 Redemption of Securities
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Section 11.01. Applicability of Article 80
Section 11.02. Election to Redeem; Notice to Trustee 80
Section 11.03. Selection by Trustee of Securities to Be Redeemed 81
Section 11.04. Notice of Redemption 81
Section 11.05. Deposit of Redemption Price 82
Section 11.06. Securities Payable on Redemption Date 82
Section 11.07. Securities Redeemed in Part 83
ARTICLE 12 Sinking Funds
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Section 12.01. Applicability of Article 83
Section 12.02. Satisfaction of Sinking Fund
Payments with Securities 83
Section 12.03. Redemption of Securities for Sinking Fund 84
ARTICLE 13 Defeasance and Covenant Defeasance
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Section 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance 84
Section 13.02. Defeasance and Discharge 84
Section 13.03. Covenant Defeasance 85
Section 13.04. Conditions to Defeasance or Covenant Defeasance 85
Section 13.05. Deposited Money and Government Obligations
To Be Held in Trust 87
Section 13.06. Reinstatement 88
ARTICLE 14 Miscellaneous
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Section 14.01. Miscellaneous 88
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 20, 2000
Trust Indenture Act Indenture
Section Section
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310(a)(1).......................................6.09
(a)(2).......................................6.09
(a)(3).......................................Not Applicable
(a)(4).......................................Not Applicable
(b).......................................6.08, 6.10
311(a).......................................6.13
(b).......................................6.13
(b)(2).......................................7.03(a), 7.03(b)
312(a).......................................7.01, 7.02(a)
(b).......................................7.02(b)
(c).......................................7.02(c)
313(a).......................................7.03(a)
(b).......................................7.03(a)
(c).......................................7.03(a), 7.03(b)
(d).......................................7.03(b)
314(a).......................................7.04, 10.06
(b).......................................Not Applicable
(c)(1).......................................1.02
(c)(2).......................................1.02
(c)(3).......................................Not Applicable
(d).......................................Not Applicable
(e).......................................1.02
315(a).......................................6.01(a)
(b).......................................6.02, 7.03(a)
(c).......................................6.01(b)
(d).......................................6.01(c)
(d)(1).......................................6.01(a), 6.01(c)
(d)(2).......................................6.01(c)
(d)(3).......................................6.01(c)
(e).......................................5.14
316(a)(1)(A).......................................5.12
(a)(1)(B).......................................5.02, 5.13
(a)(2).......................................Not Applicable
(b).......................................5.08
(c).......................................1.04(e)
317(a)(1).......................................5.03
(a)(2).......................................5.04
(b).......................................10.08
318(a).......................................1.07
INDENTURE, dated as of October 20, 2000, between THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (herein called the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior 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
ratable benefit of the Holders of the Securities, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, or defined by Commission rule and
not otherwise defined herein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(4) the word "including" (and with correlative meaning "include") means
including, without limiting the generality of, any description preceding such
term; and
(5) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 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.
"Attributable Debt" when used in connection with a Sale and Lease-Back
Transaction means, at the time of determination, the lesser of (a) the fair
market value of the property involved (as determined in good faith by the
Company's Board of Directors), (b) the present value of the total net amount of
rent required to be paid under the lease during the remaining term thereof
(including any renewal term or period for which such lease has been extended)
computed by discounting from the respective due dates to such date such total
net amount of rent at the rate of interest set forth or implicit in the terms of
such lease or (c) if the obligation with respect to the Sale and Lease-Back
Transaction constitutes an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in
accordance with generally accepted accounting principles, the amount equal to
the capitalized amount of such obligation determined in accordance with
generally accepted accounting principles and included in the financial
statements of the lessee. For purposes of the foregoing definition, rent shall
not include amounts required to be paid by the lessee, whether or not designated
as rent or additional rent, on account of or contingent upon maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In the
case of any lease that is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the board of directors of the Company; provided,
however, that when the context refers to actions or resolutions of the Board of
Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company authorized to act
with respect to any particular matter to exercise the power of the Board of
Directors of the Company.
"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", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities of any
series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or regulation to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including each class of common stock and preferred stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this 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 any two Officers, at least one of whom must
be its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer, its Chief Accounting Officer, its Treasurer, an
Assistant Treasurer or its Controller, and delivered to the Trustee.
"Consolidated Net Worth" means, at any date of determination, (a) total
assets of the Company and its Subsidiaries (including, without limitation, all
items that are treated as intangible in accordance with GAAP) at such date less
(b) total liabilities of the Company and its Subsidiaries (including, without
limitation, all deferred taxes) at such date, in each case determined on a
consolidated basis and in accordance with GAAP for such period; provided,
however, that the term "Consolidated Net Worth" shall not give effect to any
cumulative translation adjustments (whether positive or negative) at any such
date.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at The Bank of New York, 101 Barclay
Street, 21 West, New York, NY 10286; Attn: Corporate Trust Trustee
Administration.
"covenant defeasance" has the meaning specified in Section 13.03.
"currency unit" or "currency units" shall mean any composite currency.
"Custodian" means any receiver, custodian, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.01, which
must be a clearing agency registered under the Exchange Act, until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" shall mean the Depositary with respect to the Securities of
that series.
"dollars" and "$" means lawful money of the United States of America.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
"GAAP" means such accounting principles as are generally accepted in the
United States of America on the date or time of any
computation required hereunder.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" means, with respect to any Person (without duplication for
indebtedness or other obligations of such Person), any indebtedness of such
Person for money borrowed, whether incurred, assumed or guaranteed, and
including obligations under capitalized leases.
"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
hereunder.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.15.
"lien" and "liens" have the meaning specified in Section 10.09.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"New York Banking Day" has the meaning specified in Section 1.15.
"NYSE" means the New York Stock Exchange, Inc.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, any Assistant Treasurer, the Controller, any Assistant
Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by any two Officers of
the Company, at least one of whom must be its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, its Chief
Accounting Officer, its Treasurer or its Controller, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably 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 a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(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; and
(iv) Securities which have been defeased pursuant to Section 13.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that 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 the date of such
determination, (b) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the dollar equivalent, determined
in the manner provided as contemplated by Section 3.01 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (a) above) of
such Security, and (c) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to any Securities
issued hereunder.
"Permitted Liens" means (a) liens (including liens arising from sale and
lease-back transactions) on property or assets acquired or held by the Company
or a Restricted Subsidiary incurred to secure the payment of all or any part of
the purchase price thereof or to secure any Indebtedness incurred prior to, at
the time of, or within 180 days after the acquisition for the purpose of
financing all or any part of the purchase price thereof, or liens (including
liens arising from sale and lease-back transactions) on property or assets
existing at the time of acquisition thereof by the Company or a Restricted
Subsidiary, other than liens created in contemplation of such acquisition that
were not incurred for the purpose of financing all or any part of the purchase
price thereof, provided, however, that the lien does not extend to or cover any
property or assets of any character other than the property or assets being
acquired; (b) liens on property or assets of a Person, other than the Company or
a Restricted Subsidiary, existing at the time of acquisition of such property
and assets by the Company or a Restricted Subsidiary, provided, that the liens
were not created in contemplation of such acquisition and do not extend to any
property or assets of any character other than the property or assets being
acquired; (c) liens affecting property or assets of a person, other than the
Company or any Restricted Subsidiaries, existing at the time the person merges
into or consolidates with the Company or a Restricted Subsidiary or becomes a
Restricted Subsidiary or at the time of sale, lease or other disposition of the
property or assets as an entirety or substantially as an entirety to the Company
or a Restricted subsidiary, provided, however, that the liens were not created
in contemplation of the merger, consolidation or acquisition and do not extend
to any property or assets other than those of the person so merged into or
consolidated with, or acquired by, the Company or such Restricted Subsidiary;
(d) liens securing Indebtedness owing by a Restricted Subsidiary of the Company
to the Company or to a Restricted Subsidiary of the Company; (e) liens existing
on the date of initial issuance of the Securities of such series; (f) liens in
favor of the United States of America or any State, territory or possession
thereof (or the District of Columbia), or any department, agency,
instrumentality or political subdivision of the United States of America or any
state, territory or possession thereof (or the District of Columbia), to secure
partial, progress, advance or other payments; (g) liens on any property to
secure all or part of the cost of alteration, repair or improvement thereon or
Indebtedness incurred to provide funds for such purpose in a principal amount
not exceeding the cost of such improvements or construction; (h) purchase money
liens on personal property; (i) liens created in connection with capitalized
lease obligations, but only to the extent that such liens encumber property
financed by such capital lease obligation and the principal component of such
capitalized lease obligation is not increased; (j) liens on property arising in
connection with a securities repurchase transaction; (k) liens (including
judgment liens) arising in connection with legal proceedings, taxes, fees,
assessments or other governmental charges, so long as such proceedings, taxes,
fees, assessments or other governmental charges are being contested in good
faith and, in the case of judgment liens, execution thereon is stayed and for
which any reserves required in accordance with generally accepted accounting
principles have been established; (l) carriers', warehousemen's, mechanics',
landlords', materialmens', repairmens' or other similar liens arising in the
ordinary course of business which are not overdue for a period of more than 90
days or are being contested in good faith by appropriate proceedings diligently
pursued, provided, however, that (i) any proceedings commenced for the
enforcement of such liens shall have been stayed or suspended within 30 days of
the commencement thereof and (ii) provision for the payment of such liens has
been made on the books of the Company to the extent required by generally
accepted accounting principles; (m) easements, rights-of-way, zoning
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Company or
any Restricted Subsidiary; (n) pledges or deposits to secure obligations under
workers' compensation laws or other similar legislation (other than in respect
of employee benefit plans subject to the Employee Retirement Security Act of
1974, as amended) or to secure public or statutory obligations; (o) liens
securing the performance of, or payment in respect of, bids, tenders, government
contracts (other than for the repayment of borrowed money), surety and appeal
bonds and other obligations of a similar nature incurred in the ordinary course
of business; (p) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject that is incurred in the ordinary course of business;
and (q) any extension, renewal, refinancing or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien referred
to in the foregoing clauses (a) to (q), inclusive; provided, however, that any
lien permitted by any of the foregoing clauses (a) through (q) shall not extend
to or cover any property of the Company or such Restricted Subsidiary, as the
case may be, other than the property specified in such clauses and improvements
thereto.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"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.
"Redemption Date," when used with respect to any Security of any series 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 of any series to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security issued hereunder and registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.
"Required Currency" has the meaning specified in Section 1.15.
"Responsible Officer," shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary, including its Subsidiaries,
which meets any of the following conditions: (a) the Company's and its other
Subsidiaries' investments in and advances to the Subsidiary exceed ten percent
of the total assets of the Company and its Subsidiaries consolidated as of the
end of the most recently completed fiscal year (for a proposed business
combination to be accounted for as a pooling of interests, this condition is
also met when the number of shares of common stock exchanged or to be exchanged
by the Company exceeds ten percent of the total number of shares of its common
stock outstanding at the date the combination is initiated); or (b) the
Company's and its other Subsidiaries' proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds ten percent of the
total assets of the Company and its subsidiaries consolidated as of the end of
the most recently completed fiscal year; or (c) the Company's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds ten percent of such income of the Company
and its subsidiaries consolidated for the most recently completed fiscal year.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
assets, which assets have been or are to be sold or transferred by the Company
or such Restricted Subsidiary to such Person, other than (a) any such
transaction involving a lease for a term of not more than three years, (b) any
such transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, or (c) any such transaction executed by the time of or
within one year after the latest of the acquisition, the completion of
construction or improvement or the commencement of commercial operation of such
assets.
"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" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust or
estate of which (or in which) more than fifty percent of:
(a) the issued and outstanding shares of capital stock having ordinary
voting power to elect directors of such corporation (irrespective of whether at
the time shares of capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency);
(b) the interest in the capital or profits of such limited or unlimited
liability company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate is at the time,
directly or indirectly, owned by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this Indenture was executed; provided, however,
that in the event that such Act is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House 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 held 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.
"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".
Section 1.2. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his or her certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.4. Acts of Holders. (a Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 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 Registered Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the immediately following paragraph. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(f) The Trustee shall set a record date, which shall not be more than 15
days prior to the date of commencement of solicitation of such action
contemplated by this section 1.04(f), for the purpose of determining the Holders
of Securities of any series entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
5.02, (iii) any direction referred to in Section 5.12, (iv) any request to
institute proceedings referred to in Section 5.07(2), or (v) any waiver of past
defaults pursuant to Section 5.13, in each case with respect to Securities of
such series. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be holders of Securities of a series for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of such
series have authorized or agreed or consented to such action, and for that
purpose the Outstanding Securities of such series shall be computed as of such
record date; provided that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date and the proposed action by Holders to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.06.
Section 1.5. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) 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 The Bank of New York, 101 Barclay Street, 21st Floor West, New
York, New York 10286, Attention: Corporate Trust Trustee Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at The Interpublic Group of Companies, Inc., 1271 Avenue of the Americas, New
York, New York 10020, Attention: Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, such notice shall be
deemed sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first- class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders or the validity of the proceedings to which
such notice relates.
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.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture or any Security 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.
Section 1.7. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included or deemed included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, such provision of the Trust Indenture Act
shall be deemed to apply to this Indenture as so modified or shall be excluded,
as the case may be.
Section 1.8. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.9. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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 (other than the choice of
law provisions) of the State of New York.
Section 1.13. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day or on such other
day as may be set out in the Officers' Certificate pursuant to Section 3.01 at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be, provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if payment is made on such next succeeding Business Day or other
day set out in such Officers' Certificate.
Section 1.14. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a Security, waives and releases all
such liability. Such waivers and releases are part of the consideration for the
issuance of the Securities.
Section 1.15. Judgment Currency. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, on the Securities
of any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in the City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in the City of
New York or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each series shall be in
substantially the form set forth in this Article, or in such other form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities, 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 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 2.2. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert-- FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION 1273(a)(1)
OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a)) WITH RESPECT TO THIS
SECURITY IS ________, THE ISSUE DATE (AS DEFINED IN SECTION 1275(a)(2) OF THE
CODE AND TREASURY REGULATION SECTION 1.1273-2(a)(2)) OF THIS SECURITY IS
________, THE ISSUE PRICE (AS DEFINED IN SECTION 1273(b) OF THE CODE AND
TREASURY REGULATION 1.1273-2(a)) OF THIS SECURITY IS ________ AND THE YIELD TO
MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(b)) OF THIS
SECURITY IS ________ -- or insert other legend required by the Internal Revenue
Code and the regulations thereunder.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
.............................................
CUSIP No. _________
No. _______ [$]_________
The Interpublic Group of Companies, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of _______________ [Dollars] on _______________ [if
the Security is to bear interest prior to Maturity, insert-- and to pay interest
thereon from _______________ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on
_______________ and _______________ in each year [if other than semi-annual
payments, insert frequency of payments and payment dates], commencing
_____________________, at [if the Security is to bear interest at a fixed rate,
insert-- the rate of _____% per annum], [if the Security is to bear interest at
a variable or floating rate and if determined with reference to an index, refer
to description of index below] until the principal hereof is paid or made
available for payment [if applicable insert--, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of _____% per
annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the __________ or __________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Securities are floating or adjustable rate securities with respect
to which the principal of or any premium or interest may be determined with
reference to an index, insert the text of the floating or adjustable rate
provision.]
[If the Security is not to bear interest prior to Maturity, insert-- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in _______________, in dollars [if
applicable, insert--; provided, however, that at the option of the Company,
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
[If applicable, insert-- So long as all of the Securities of this series
are represented by Securities in global form, the principal of, premium, if any,
and interest, if any, on this global Security shall be paid in same day funds to
the Depositary, or to such name or entity as is requested by an authorized
representative of the Depositary. If at any time the Securities of this series
are no longer represented by global Securities and are issued in definitive
certificated form, then the principal of, premium, if any, and interest, if any,
on each certificated Security at Maturity shall be paid in same day funds to the
Holder upon surrender of such certificated Security at the Corporate Trust
Office of the Trustee, or at such other place or places as may be designated in
or pursuant to the Indenture, provided that such certificated Security is
surrendered to the Trustee, or at such other place or places as may be
designated in or pursuant to the Indenture, provided that such certificated
Security is surrendered to the Trustee, acting as Paying Agent, in time for the
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Payments of interest with respect to such certificated Securities
other than at Maturity may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register on the relevant Regular or Special Record Date or by wire
transfer in same day funds to such account as may have been appropriately
designated to the Paying Agent by such Person in writing not later than such
relevant Regular or Special Record Date.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: ______________________________
Attest:
_________________________ [SEAL]
2000
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _______________, 2000 (herein called the
"Indenture"), between the Company and ____________________, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $__________].
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by first class
mail, [if applicable, insert-- (1) on __________ in any year commencing with the
year __________ and ending with the year __________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after __________, _____], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _______________, _____%, and if redeemed] during
the 12-month period beginning _______________ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert-- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by first class
mail, (1) on _______________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after __________], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below:
If redeemed during a 12-month period beginning _________________ of the
years indicated,
Redemption Price
Redemption Price for Redemption
for Redemption Otherwise Than
Through Operation Through Operation
of the of the
Sinking Fund Sinking Fund Year
----------------- ----------------- ----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to __________,
redeem any Securities of this series as contemplated by [clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on __________
in each year beginning with the year _____ and ending with the year _____ of
[not less than] $_______________ [("mandatory sinking fund") and not more than
$____________] aggregate principal amount of Securities of this series.]
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due.]
[In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert-- If
any Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert-- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal --insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[This Security is subject to defeasance as described in the Indenture.]
The Indenture may be modified by the Company and the Trustee without
consent of any Holder with respect to certain matters as described in the
Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same Stated Maturity and aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$1,000] and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, merge or consolidate with any other Person or sell, assign,
transfer or lease all or substantially all of its properties or assets [If other
covenants are applicable pursuant to the provisions of Section 3.01, insert
here]. All such covenants and limitations are subject to a number of important
qualifications and exceptions. The Company must report periodically to the
Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under this Security or
the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder, by accepting a Security, waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of this Security.
[If applicable, insert-- Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures ("CUSIP"), the Company
has caused CUSIP numbers to be printed on the Securities of this series as a
convenience to the Holders of the Securities of this series. No representation
is made as to the correctness or accuracy of such numbers as printed on the
Securities of this series and reliance may be placed only on the other
identification numbers printed hereon.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws (other than the choice of law provisions) of the State of New York.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
______________________________________________________
(Insert assignee's social security or tax I.D. number)
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: __________ Your Signature:_____________________________________________
(Sign exactly as your name appears on the
other side of this Security)
Signature Guaranty: ____________________________________________________________
[Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer Agent,
which requirements will include membership or participation
in STAMP or such other "signature guarantee program" as may
be determined by the Transfer Agent in addition to, or in
substitution for, STAMP, all in accordance with the Exchange
Act.]
Social Security Number or
Taxpayer Identification Number:_________________________________________________
Section 2.4. Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the following form:
Dated: _______________
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By _________________________________
Authorized Signatory
Section 2.5. Securities in Global Form. If Securities of or within a series
are issuable in whole or in part in global form, then any such Security of such
series may provide that it shall represent the aggregate or a specified amount
of the Outstanding Securities of such series from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be reduced or increased to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.03 or Section 3.04. Subject to the provisions of Section
3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 3.03 or 3.04 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.02 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 2.01 and 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of and premium,
if any, and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Section 2.6. Form of Legend for the Securities in Global Form. Any Security
in global form authenticated and delivered hereunder shall bear a legend in
substantially the following form, or in such other form as may be necessary or
appropriate to reflect the arrangements with or to comply with the requirements
of any Depositary:
"This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee of a Depositary. Unless
and until it is exchanged in whole or in part for Securities
in certificated form in the limited circumstances described
in the Indenture, this Security may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued from time to time in one or more series. Prior
to the issuance of Securities of any series, there shall be established in or
pursuant to (i) a Board Resolution, (ii) action taken pursuant to a Board
Resolution and (subject to Section 3.03) set forth, or determined in the manner
provided, in an Officers' Certificate, or (iii) one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) the purchase price, denomination and 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 3.04, 3.05, 3.06, 9.06 or
11.07);
(3) the date or dates on which the principal of and premium, if any, on the
Securities of the series is payable or the method of determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of interest,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date, if any, for the
interest payable on any Interest Payment Date;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may be exchanged or
transferred;
(7) the period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which, and the
other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company, and, if other than as
provided in Section 11.03, the manner in which the particular Securities of such
series (if less than all Securities of such series are to be redeemed) are to be
selected for redemption;
(8) the obligation, if any, of the Company to redeem or purchase Securities
of the series in whole or in part pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices at
which, and the other terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(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 U.S. dollars, the currency or currencies (including
currency unit or units) in which payments of principal of, premium, if any, and
interest on the Securities of the series shall or may by payable, or in which
the Securities of the series shall be denominated, and the particular provisions
applicable thereto;
(11) if the payments of principal of, premium, if any, or interest on the
Securities of the series are to be made, at the election of the Company or a
Holder, in a currency or currencies (including currency unit or units) other
than that in which such Securities are denominated or designated to be payable,
the currency or currencies (including currency unit or units) in which such
payments are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall be
determined, and the particular provisions applicable thereto;
(12) if the amount of payments of principal of, premium, if any, and
interest on the Securities of the series shall be determined with reference to
an index, formula or other method (which index, formula or method may be based,
without limitation, on a currency or currencies (including currency unit or
units) other than that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which such
amounts shall be determined;
(13) 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;
(14) any modifications of or additions to the Events of Default or the
covenants of the Company set forth herein with respect to Securities of the
series;
(15) if either or both of Section 13.02 and Section 13.03 shall be
inapplicable to the Securities of the series (provided that if no such
inapplicability shall be specified, then both Section 13.02 and Section 13.03
shall be applicable to the Securities of the series);
(16) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(17) if the Securities of the series shall be issued in whole or in part in
global form, (i) the Depositary for such global Securities, (ii) the form of any
legend in addition to or in lieu of that in Section 2.06 which shall be borne by
such global Security, (iii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form
and denomination, and (iv) if other than as provided in Section 3.05, the
circumstances under which any such exchange may occur;
(18) if the Holders of the Securities of the series may convert or exchange
the Securities of the series into or for securities of the Company or of other
entities or other property (or the cash value thereof), the specific terms of
and period during which such conversion or exchange may be made; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 9.01, but
which may modify or delete any provision of this Indenture insofar as it applies
to such series), including any terms which may be required by or advisable under
the laws of the United States of America or regulations thereunder or advisable
(as determined by the Company) in connection with the marketing of Securities of
the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 3.03) set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any 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, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. 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.
Section 3.3. Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer, or its
Chief Accounting Officer 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. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
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 shall authenticate and make such Securities available for
delivery. 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 Sections 315(a)
through (d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to a
Board Resolution as permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 3.01, that such terms have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
If such form or terms have been so established, 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, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in personal
liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
and the Officers' Certificate otherwise required pursuant to Section 3.01 or the
Company Order and Opinion of Counsel otherwise required pursuant to the second
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.01 that the Securities
of a 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 this Section and the Company Order with respect to the
authentication and delivery of such series, authenticate and deliver one or more
Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
Each Depositary designated pursuant to Section 3.01 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation. The Trustee shall have no
responsibility to determine if the Depositary is so registered. Each Depositary
shall enter into an agreement with the Trustee and the Company governing the
respective duties and rights of such Depositary, the Company and the Trustee
with regard to Securities issued in global form.
Unless otherwise provided for in the form of Security, each Security shall
be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent 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.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary Securities
of such series 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.
In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions thereof), if temporary Securities of
any series are issued, the Company will cause definitive Securities of 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
in a Place of Payment 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 make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.5. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency to be maintained by the Company in accordance with
Section 10.02 in a Place of Payment a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of registration of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, 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 and Stated Maturity.
At the option of the Holder, Securities of any series (except a Security in
global form) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and Stated
Maturity, 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 make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or defaults in the performance of its duties as
Depositary or if at any time the Depositary for the Securities of such series
shall no longer be eligible under Section 3.03, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's selection pursuant to Section 3.01(b)(18)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certified Security or
Securities of the same series of like tenor, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like tenor in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or exchanged,
no service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (i) to issue, register
the transfer of or exchange Securities of such 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.
The foregoing provisions relating to registration, transfer and exchange
may be modified, supplemented or superseded with respect to any series of
Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written 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 3.7. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment (which shall be not less than 25 days after
the receipt by the Trustee of such notice, unless such Trustee shall consent to
an earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause
(2), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Sections 3.05 and 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.
None of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the right of such Depositary (or its
nominee) as holder of such Security in global form.
Section 3.9. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be held by the Trustee and disposed of in accordance with the Trustee's standard
procedures.
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 comprised of
twelve 30-day months.
Section 3.11. CUSIP Number. The Company in issuing Securities of any series
may use a "CUSIP" number, and if so, the Trustee may use the CUSIP number in
notices of redemption or exchange as a convenience to Holders of such series;
provided, that any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP number of any series of
Securities.
Section 3.12. Wire Transfers. Notwithstanding any other provision to the
contrary in this Indenture, the Company may make any payment of moneys required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on the Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer of
immediately available funds to an account designated by the Trustee on or before
the date and time such moneys are to be paid to the Holders of the Securities in
accordance with the terms hereof.
Section 3.13. Original Issue Discount. The Company shall file with the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year
(ii) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities and replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for or in
the form of Security for such series), when the Trustee, upon Company Request
and 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 10.08) have been delivered to the
Trustee for cancellation; or (b) all such Securities not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii) 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 with the Trustee as trust funds in trust for the
purpose an amount, in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or 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 provided for
herein relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 10.08 shall survive.
Section 4.2. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.08, all money deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE 5
Remedies
Section 5.1. Events of Default. "Event of Default," wherever used herein
with respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or to be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of that
series when such interest becomes due and payable and the default continues for
a period of 30 days; or
(2) the Company defaults in the payment of the principal of, or premium, if
any, on any Security of that series when the same becomes due and payable at
Maturity or on redemption or otherwise; or
(3) the Company fails to deposit any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) the Company fails to observe or perform in any material respect any of
its other covenants, agreements or warranties in the Securities of that series
or this Indenture (other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section 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 the failure to
observe or perform continues for the period and after the notice specified in
the last paragraph of this Section; or
(5) an event of default, as defined in any mortgage, indenture, or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company (including Securities of another
series) (other than the Securities of such series) (whether such Indebtedness
now exists or shall hereafter be created or incurred) shall occur and shall
result in Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such default in
payment is not cured or such acceleration shall not be rescinded or annulled
within 10 days after written notice to the Company from the Trustee or to the
Company and to the Trustee from the Holders of at least twenty-five percent in
aggregate principal amount of the Outstanding Securities of that series
specifying such event of default and requiring the Company to cure such default
in payment or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; provided, however, that it
shall not be an Event of Default if the principal amount of Indebtedness which
is not paid at maturity or the maturity of which is accelerated is equal to or
less than $20,000,000; provided further that if, prior to a declaration of
acceleration of the maturity of the Securities of that series or the entry of
judgment in favor of the Trustee in a suit pursuant to Section 5.03, such
default shall be remedied or cured by the Company or waived by the holders of
such Indebtedness, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the Holders of the
Securities of that series, and provided further, that, subject to Sections 6.01
and 6.02, the Trustee shall not be charged with knowledge of any such default
unless written notice of such default shall have been given to the Trustee by
the Company, by a holder or an agent of a holder of any such Indebtedness, by
the trustee then acting under any indenture or other instrument under which such
default shall have occurred, or by the Holders of at least five percent in
aggregate principal amount of the Securities of that series at the time
outstanding; or
(6) the Company or any of its Restricted Subsidiaries pursuant to or within
the meaning of any Bankruptcy Law (a) commences a voluntary case or proceeding
under any Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to or acquiesces in the
institution of bankruptcy or insolvency proceedings against it, (D) applies for,
consents to or acquiesces in the appointment of or taking possession by a
Custodian of it or for all or substantially all of its property, (E) makes a
general assignment for the benefit of its creditors or (F) takes any corporate
action in furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or
(7) (i) a court of competent jurisdiction enters a judgment, decree or
order for relief in an involuntary case or proceeding under any Bankruptcy Law
which shall (a) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company or any of its
Restricted Subsidiaries, (B) appoint a Custodian of the Company or any of its
Restricted Subsidiaries or for all or substantially all of its property or (C)
order the winding-up or liquidation of affairs of the Company or any of its
Restricted Subsidiaries, and such judgment, decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy or
insolvency proceeding is commenced, against the Company or any of its Restricted
Subsidiaries and such petition, application or proceeding is not dismissed
within 60 days; or (iii) a warrant of attachment is issued against any material
portion of the property of the Company or any of its Restricted Subsidiaries
which is not released within 60 days of service; or
(8) any other Event of Default provided with respect to Securities of that
series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least twenty-five percent in aggregate principal
amount of the Outstanding Securities of that series notify the Company of the
Default and the Company does not cure the Default within 60 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default." When a Default under clause
(4) above is cured within such 60-day period, it ceases to be a Default.
Section 5.2. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series (other than an Event
of Default specified in clause (6) or (7) of Section 5.01) occurs and is
continuing, the Trustee by notice in writing to the Company, or the Holders of
at least twenty-five percent in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be due
and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.01
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and (upon payment of the
Securities of all series) this Indenture shall terminate, except obligations
under Section 6.07.
At any time after a declaration of acceleration of Maturity 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 notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal of and interest on the Securities of that
series that has become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal that has
become due otherwise than by such declaration of acceleration have been paid,
(iii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 6.07 have been made.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any interest on any Security of any
series 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 of any series at the Maturity thereof, or
(3) default is made in the payment of any sinking or analogous obligation
when the same becomes due by the terms of the Securities of any series, and any
such default continues for any period of grace provided with respect to the
Securities of such series,
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 and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or 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 secure any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other 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,
(i) 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 agent and
counsel) and of the Holders allowed in such judicial proceedings, and
(ii) 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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 5.6. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article in respect of the Securities of any series
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,
premium, if any, or interest, upon presentation of the Securities in respect of
which moneys have been collected 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
applicable to such series;
Second: To the payment of the amounts then due and unpaid for principal of,
and premium, if any, and interest on the Securities of such series 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 of such series for principal, and premium, if any,
and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least ten (10) days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.7. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least twenty-five percent 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 shall have offered to the Trustee indemnity
reasonably satisfactory to it 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 Holders of
Securities of any series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all Holders of Securities of the affected series.
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.07) interest on such Security on the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding has 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 acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to Section 6.01, the Trustee need not take any action which
might involve the Trustee in personal liability or be unduly prejudicial to the
Holders not joining therein.
Section 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may by
written notice to the Trustee on behalf of the Holders of all the Securities of
such series waive any Default or Event of Default with respect to such series
and its consequences, except a Default or Event of Default
(1) in respect of 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 other 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 or Event of Default shall cease to exist
and shall be deemed to have been cured, for every purpose of this Indenture and
the Securities of such series; but no such waiver shall extend to any subsequent
or other Default or Event of 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 and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than ten percent 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 Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities of the Trustee. (a) Except
during the continuance of an Event of Default, the Trustee's duties and
responsibilities under this Indenture shall be governed by Section 315(a) of the
Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and is
known to the Trustee, the Trustee shall exercise the rights and powers vested in
it by this Indenture, and shall use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) None of the provisions of Section 315(d) of the Trust Indenture Act
shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to the Trustee shall
be subject to this Section 6.01.
Section 6.2. Notice of Defaults. Within 90 days after the occurrence of any
Default or Event of Default with respect to the Securities of any series, the
Trustee shall give to all Holders of Securities of such series, as their names
and addresses appear in the Security Register, notice of such Default or Event
of Default known to the Trustee, unless such Default or Event of Default shall
have been cured or waived; provided, however, that, except in the case of a
Default or Event of Default in the payment of the principal of or premium, if
any, or interest on any Security 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 directors and/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.
Section 6.3. Certain Rights of Trustee. Subject to the provisions of the
Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) 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 may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default which may have occurred, 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, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require indemnity satisfactory to it against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) the Trustee shall not be deemed to have notice of any Default of Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titled of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 6.4. Not Responsible for Recitals or Issuance of Securities. The
recitals herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder, and that the
statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar 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, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in trust
hereunder (including amounts held by the Trustee as Paying Agent) need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed upon in writing with the Company.
Section 6.7. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing 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
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor trustee and their
agents for, and to hold them harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based upon or
determined or measured by the income of the Trustee), 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 (whether asserted by
the Company, or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.07, except with respect to funds held in
trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(6) or Section 5.01(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 6.07 shall survive this Indenture and the
resignation or removal of the Trustee.
Section 6.8. Disqualification; Conflicting Interests. The Trustee shall be
disqualified only where such disqualification is required by Section 310(b) of
the Trust Indenture Act. Nothing shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
Section 6.9. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation 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 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 may serve as Trustee. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 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 at the expense of the Company for the appointment of a successor
Trustee with respect to the Securities of 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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall
fail to resign after written request therefor by the Company or by any such
Holder of a Security who has been a bona fide Holder of a Security for at least
six months; 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 315(e) of
the Trust Indenture Act, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction, for the appointment of a successor Trustee
with respect to the Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company with respect to
such Securities. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(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 such (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under the
Trust Indenture Act.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor (by merger,
conversion, consolidation or otherwise as permitted hereunder) 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. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
Section 6.14. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of, and subject to the direction 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. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation as negotiated between the Company and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________________
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
The Bank of New York
As Trustee
By _______________________________________
As Authenticating Agent
By _______________________________________
Authorized Signatory
Section 6.15. Compliance with Tax Laws. The Trustee hereby agrees to comply
with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Securities of any series, whether acting as Trustee, Security
Registrar, Paying Agent or otherwise with respect to the Securities of any
series.
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date for
each series of Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as of such
Regular Record Date (unless the Trustee has such information), or if there is no
Regular Record Date for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.01 and the names and addresses of
Holders received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section 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 communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the time
by the Trustee in accordance with Section 7.02(a); or
(ii) 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 applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(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 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 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 7.3. Reports by Trustee. (a) Within 60 days after September 15 of
each year commencing with the year 2000, the Trustee shall transmit by mail to
all Holders of Securities as provided in Section 313(c) of the Trust Indenture
Act, a brief report dated as of September 15, if required by and in compliance
with Section 313(a) of the Trust Indenture Act. The Trustee shall also comply
with Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
any delisting thereof.
Section 7.4. Reports by Company. The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the 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;
(3) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, (a) concurrently with furnishing the same to its
stockholders, the Company's annual report to stockholders, containing certified
financial statements, and any other financial reports which the Company
generally furnishes to its stockholders, and (b) within 30 days after the filing
thereof with the Trustee, such summaries of any other 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; and
(4) furnish to the Trustee, on October 15, of each year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. Such
certificate need not comply with Section 1.02.
Delivery of reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 8
Consolidation, Merger, Lease, Sale or Transfer
Section 8.1. When Company May Merge, Etc.. The Company shall not
consolidate with, or merge with or into, any other Person (whether or not the
Company shall be the surviving corporation), or convey, transfer or lease all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Person or group of affiliated Persons, in one transaction
or a series of related transactions, unless:
(1) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or with which or into which
the Company is merged or the Person (or group of affiliated Persons) to which
all or substantially all the properties and assets of the Company as an entirety
or substantially as an entirety are conveyed, transferred or leased shall be a
corporation (or constitute corporations) organized and existing under the laws
of the United States of America or any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture; and
(2) immediately after giving effect to such transaction or series of
related transactions, no Event of Default, and no Default, shall have occurred
and be continuing.
Section 8.2. Opinion of Counsel. The Company shall deliver to the Trustee
prior to the proposed transaction(s) covered by Section 8.01 an Officers'
Certificate and an Opinion of Counsel stating that the transaction(s) and such
supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of the transaction(s) under this Indenture have
been met.
Section 8.3. Successor Corporation Substituted. Upon any consolidation by
the Company with or merger by the Company into any other corporation or any
conveyance, transfer or lease all or substantially all of the property and
assets of the Company in accordance with Section 801, the successor corporation
formed by such consolidation or into which the Company is merged or the
successor corporation or affiliated group of corporations to which such lease,
sale, assignment or transfer 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 or corporations had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor corporation or corporations shall be relieved of all obligations and
covenants under this Indenture and the Securities and in the event of such
conveyance or transfer, except in the case of a lease, any such predecessor
corporation may be dissolved and liquidated.
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders. Without
notice to or 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 with respect to all or any series of Securities; or
(4) to add 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 or not registrable as to principal, and with or without
interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be inconsistent with any other
provision herein; or
(10) to make any change that does not materially adversely affect the
interests of the Holders of Securities of any series; or
(11) to add guarantees with respect to any or all of the Securities; or
(12) to provide for uncertificated Securities in addition to or in place of
certificated Securities (provided that the uncertificated Securities are issued
in registered form for purposes of Section 163(f) of the Internal Revenue Code
or in a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of such Code).
Upon request of the Company, accompanied by a Board Resolution authorizing
the execution of any such supplemental indenture, and upon receipt by the
Trustee of the documents described in (and subject to the last sentence of)
Section 9.03, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
Section 9.2. Supplemental Indentures with Consent of Holders. With the
written consent of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture (with the Securities of each series voting as a class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee shall, subject to Section 9.03, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or premium, if any, or
any installment of principal of or premium, if any, or interest on, any
Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption, repurchase or repayment thereof, or
change the manner in which the amount of any principal thereof or premium, if
any, or interest thereon is determined, or reduce the amount of the principal of
any Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or
change any Place of Payment where, or the coin or currency or currency unit in
which, any Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding Securities
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 Defaults or
Events of Default hereunder and their consequences provided for in this
Indenture; or
(3) change the redemption provisions (including Article 11) hereof in a
manner adverse to such Holder; or
(4) modify any of the provisions of this Section, Section 5.13 or Section
10.11, 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; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 10.11, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures. The Trustee shall sign
any supplemental indenture authorized pursuant to this Article, subject to the
last sentence of this Section 9.03. 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 Officers' Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE 10
Covenants
Section 10.1. Payments of Securities. With respect to each series of
Securities, the Company will duly and punctually pay the principal of (and
premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit of, the
Securities of such series.
Section 10.2. Maintenance of Office or Agency. The Company will maintain an
office or agency in each Place of Payment where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment, where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 1.05 hereof.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 10.3. Corporate Existence. Subject to Article 8 hereof, 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 of its Subsidiaries
and the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that (a) the Company shall not be
required to preserve any such right, license or franchise or the corporate
existence of any of its Subsidiaries if the Board of Directors, or the board of
directors of the Subsidiary concerned, as the case may be, shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company or any of its Subsidiaries, and (b) nothing herein contained
shall prevent any Subsidiary of the Company from liquidating or dissolving, or
merging into, or consolidating with the Company (provided that the Company shall
be the continuing or surviving corporation) or with any one or more other
Subsidiaries if the Board of Directors or the board of directors of the
Subsidiary concerned, as the case may be, shall so determine.
Section 10.4. 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 material 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 for
which adequate provision has been made.
Section 10.5. Maintenance of Properties. The Company will cause all
material properties used or useful in the conduct of its business or the
business of any of its Subsidiaries to be maintained and kept in good condition,
repair and working order (normal wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors or of the board of directors of the Subsidiary
concerned, as the case may be, desirable in the conduct of the business of the
Company or any Subsidiary of the Company.
Section 10.6. Compliance Certificates. (a) The Company shall deliver to the
Trustee within 90 days after the end of each fiscal year of the Company (which
fiscal year currently ends on December 31), an Officers' Certificate stating
whether or not the signer knows of any Default or Event of Default by the
Company that occurred prior to the end of the fiscal year and is then
continuing. If the signer does know of such a Default or Event of Default, the
certificate shall describe each such Default or Event of Default and its status
and the specific section or sections of this Indenture in connection with which
such Default or Event of Default has occurred. The Company shall also promptly
notify the Trustee in writing should the Company's fiscal year be changed so
that the end thereof is on any date other than the date on which the Company's
fiscal year currently ends. The certificate need not comply with Section 1.02
hereof, but shall comply with Section 314(a)(4) of the Trust Indenture Act.
(b) The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any acceleration which with the giving of notice
and the lapse of time would be an Event of Default within the meaning of Section
5.01(5) hereof.
(c) The Company shall deliver to the Trustee within 100 days after the end
of each fiscal year a written statement by the Company's independent certified
public accountants stating (i) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters and (ii) whether, in connection with their audit examination,
any Default has come to their attention and if such a Default has come to their
attention, specifying the nature and period of existence thereof and the
specific section or sections of this Indenture in connection with which such
Default has occurred; provided that, without any restriction as to the scope of
the audit examination, such independent certified public accountants shall not
be liable by reason of the failure to obtain knowledge of such Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards.
(d) The Company shall deliver to the Trustee forthwith upon becoming aware
of a Default or Event of Default (but in no event later than 10 days after the
occurrence of each Default or Event of Default that is continuing), an Officers'
Certificate setting forth the details of such Default or Event of Default and
the action that the Company proposes to take with respect thereto and the
specific section or sections of this Indenture in connection with which such
Default or Event of Default has occurred.
Section 10.7. Waiver of Stay, Extension or Usury 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, and will actively
resist any and all efforts to be compelled to take the benefit or advantage of,
any stay or extension law or any usury law or other law, which would prohibit or
forgive the Company from paying all or any portion of the principal of and/or
interest on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 10.8. 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, on or 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 Company will promptly notify the Trustee of its action
or failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest on the Securities of that series;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for one year
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 of 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 New York, 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 10.9. Limitations on Liens. Unless the terms of a particular series
of Securities otherwise provide, so long as any Securities of such series remain
Outstanding, the Company will not, nor will it permit any Restricted Subsidiary
to, issue, incur, create, assume or guarantee any Indebtedness secured by a
mortgage, security interest, pledge, lien, charge or other encumbrance
(mortgages, security interests, pledges, liens, charges and other encumbrances
being hereinafter in this Article 10 referred to as "lien" or "liens") upon any
assets of the Company or any Restricted Subsidiary (whether such assets are now
existing or owned or hereafter created or acquired) without in any such case
effectively providing concurrently with the issuance, incurrence, creation,
assumption or guaranty of any such Indebtedness that the Securities of such
series (together with, if the Company shall so determine, any other indebtedness
of or guarantee by the Company or such Restricted Subsidiary ranking equally
with the Securities of such series and then existing or thereafter created)
shall be secured equally and ratably with (or, at the Company's option, prior
to) such secured Indebtedness until such time as such Indebtedness is no longer
secured by a lien. The preceding sentence shall not require the Company to
secure any Securities of such series if the lien consists of either of the
following:
(a) Permitted Liens; or
(b) liens securing Indebtedness if, after giving pro forma effect to the
incurrence, creation, assumption or guaranty of such Indebtedness (and the
receipt and application of the proceeds thereof) or the securing of outstanding
Indebtedness, the sum of (without duplication) (i) the aggregate principal
amount of all such Indebtedness of the Company and its Subsidiaries secured by
liens (other than Permitted Liens) upon the assets of the Company or any
Restricted Subsidiary or, if less, the fair market value of the property subject
to such lien, as determined in good faith by the Board of Directors and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions not otherwise
permitted under the first sentence of Section 10.11, at the time of
determination does not exceed fifteen percent of Consolidated Net Worth.
Section 10.10. Limitations on Sale and Lease-back Transactions. Unless the
terms of a particular series of Securities otherwise provide, so long as any
Securities of such series remain Outstanding, the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any Sale and Lease-Back
Transaction for a term of more than three years unless (a) the assets subject to
the Sale and Lease-back Transaction have not been owned by the Company or a
Restricted Subsidiary or have not been in full operation for more than one year
prior to the Sale and Lease-back Transaction or (b) the Company or such
Restricted Subsidiary would be entitled to incur Indebtedness secured by a lien
on such assets in an amount at least equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction without equally and ratably securing the
Securities of such series pursuant to Section 10.10 or (c) the Company, within
180 days after the effective date of such Sale and Lease-Back Transaction,
applies an amount equal to the value of such assets to the defeasance or
retirement (other than any mandatory retirement, mandatory prepayment or sinking
fund payment or by way of payment at maturity) of Securities or other
Indebtedness of the Company or a Restricted Subsidiary that matures more than
one year after the creation of such Indebtedness or to the purchase,
construction or development of other comparable property or (d) the transaction
is between the Company and one of its Restricted Subsidiaries. Notwithstanding
the foregoing, the Company and its Restricted Subsidiaries shall be allowed to
enter into Sale and Lease-back Transactions if, after giving pro forma effect to
such Sale and Lease-back Transaction (and the receipt and application of
proceeds thereof) the sum of (without duplication) (i) the aggregate principal
amount of all Indebtedness of the Company and its Subsidiaries secured by liens
(other than Permitted Liens) upon the assets of the Company or any Restricted
Subsidiary or, if less, the fair market value of the property subject to such
lien, as determined in good faith by the Board of Directors and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions not otherwise
permitted under the first sentence of this Section 10.11, at the time of
determination does not exceed fifteen percent of Consolidated Net Worth.
Section 10.11. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 10.09 or 10.10 with respect to the Securities of any series if before
the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act or
such Holders, either waive such compliance in such instance 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 11
Redemption of Securities
Section 11.1. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution. 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 30 and not more than 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 90 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, substantially pro rata, by lot or by any
other method as the Trustee considers fair and appropriate and that complies
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination 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; provided that in case the
Securities of such series have different terms and maturities, the Securities to
be redeemed shall be selected by the Company and the Company shall give notice
thereof to the Trustee.
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 the Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 45 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;
(6) that the redemption is for a sinking fund, if such is the case; and
(7) the CUSIP number, if any, of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to 10:00 New York
City time on the 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 10.08) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular or Special Record Dates 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 11.7. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
at a 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 and Stated Maturity, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 3.01 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 12.2. Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Securities of a series (other than any Securities
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not less than 45
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.02 and
will also deliver to the Trustee any Securities to be so delivered (which have
not been previously delivered). Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 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 13
Defeasance and Covenant Defeasance
Section 13.1. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. Unless pursuant to Section 3.01 provision is
made for the inapplicability of either or both of (a) defeasance of the
Securities of a series under Section 13.02 or (b) covenant defeasance of the
Securities of a series under Section 13.03, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article, shall be applicable to the Securities of such series, and the Company
may at its option by Board Resolution, at any time, with respect to the
Securities of such series, elect to have either Section 13.02 (unless
inapplicable) or Section 13.03 (unless inapplicable) be applied to the
Outstanding Securities of such series upon compliance with the applicable
conditions set forth below in this Article.
Section 13.2. Defeasance and Discharge. Upon the Company's exercise of the
option provided in Section 13.01 to defease the Outstanding Securities of a
particular series, the Company shall be discharged from its obligations with
respect to the Outstanding Securities of such series on the date the applicable
conditions set forth in Section 13.04 are satisfied (hereinafter, "defeasance").
Defeasance shall mean that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided, however, that the following rights,
obligations, powers, trusts, duties and immunities shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the trust fund provided for in
Section 13.04, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.08, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article,
the Company may exercise its option with respect to defeasance under this
Section 13.02 notwithstanding the prior exercise of its option with respect to
covenant defeasance under Section 13.03 in regard to the Securities of such
series.
Section 13.3. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 13.01 to obtain a covenant defeasance with respect to
the Outstanding Securities of a particular series, the Company shall be released
from its obligations under this Indenture (except its obligations under Sections
3.04, 3.05, 3.06, 5.06, 5.09, 6.10, 10.01, 10.02, 10.06, 10.07 and 10.08) with
respect to the Outstanding Securities of such series on and after the date the
applicable conditions set forth in Section 13.04 are satisfied (hereinafter,
"covenant defeasance"). Covenant defeasance shall mean that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in this Indenture (except its obligations under Sections 3.04, 3.05, 3.06,
5.06, 5.09, 6.10, 10.01, 10.02, 10.06, 10.07 and 10.08), whether directly or
indirectly by reason of any reference elsewhere herein or by reason of any
reference to any other provision herein or in any other document, and such
omission to comply shall not constitute an Event of Default under Section
5.01(4) with respect to Outstanding Securities of such series, and the remainder
of this Indenture and of the Securities of such series shall be unaffected
thereby.
Section 13.4. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to defeasance under Section 13.02 and covenant
defeasance under Section 13.03 with respect to the Outstanding Securities of a
particular series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article applicable to it),
under the terms of an irrevocable trust agreement in form and substance
reasonably satisfactory to such Trustee, as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, after payment of
all federal, state and local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of (and
premium, if any) and interest on the Outstanding Securities of such series on
the Stated Maturity of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities.
(2) No Default or Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit, and no Default or Event of Default
under clause (6) or (7) of Section 5.01 hereof shall occur and be continuing, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(4) Such defeasance or covenant defeasance shall not cause any Securities
of such series then listed on any national securities exchange registered under
the Exchange Act to be delisted.
(5) In the case of an election with respect to Section 13.02, the Company
shall have delivered to the Trustee either (a) a ruling directed to the Trustee
received from the Internal Revenue Service to the effect that the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not occurred or
(B) an Opinion of Counsel, based on such ruling or on a change in the applicable
federal income tax law since the date of this Indenture, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
(6) In the case of an election with respect to Section 13.03, the Company
shall have delivered to the Trustee an Opinion of Counsel or a ruling directed
to the Trustee received from the Internal Revenue Service to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in compliance
with any additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 3.01.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 13.02 or
the covenant defeasance under Section 13.03 (as the case may be) have been
complied with.
Section 13.5. Deposited Money and Government Obligations To Be Held in
Trust. Subject to the provisions of the last paragraph of Section 10.08, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Outstanding Securities of a particular series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in respect
thereof, other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations held by it as provided in Section 13.04 with respect
to Securities of any series which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited for the purpose for which such money or
Government Obligations were deposited.
Section 13.6. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money or U.S. Government Obligations, as the case may be, in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money or U.S. Government Obligations, as the case may be, held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with
this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations, as the case may be, so held in trust.
ARTICLE 14
Miscellaneous
Section 14.1. Miscellaneous. 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.
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.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ NICHOLAS J. CAMERA
---------------------------------
Name: NICHOLAS J. CAMERA
Title: Senior Vice President
[SEAL]
Attest:
/s/ SUSAN SALORIO
- ---------------------------------
Name: SUSAN SALORIO
Title: Vice President
THE BANK OF NEW YORK
as Trustee
By: /s/ MING SHIANG
---------------------------------
Name: MING SHIANG
Title: Vice President
THE INTERPUBLIC GROUP OF COMPANIES, INC.
UNDERWRITING AGREEMENT
(DEBT SECURITIES)
October 17, 2000
October 17, 2000
Chase Securities Inc.
Morgan Stanley & Co. Incorporated
c/o Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Dear Sirs and Mesdames:
From time to time, The Interpublic Group of Companies, Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-44512), including a
prospectus, relating to the debt securities (the "Offered Securities") and has
filed with the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act that is incorporated by reference in the
Registration Statement and Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented,
if applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply (A) to statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter expressly for use therein or (B) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so incorporated or
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of
the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims, except to the extent that
the failure to be so authorized, issued and fully paid and
non-assessable and so owned would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether considered in an action at
law or equity) and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether considered in an action at law or equity) and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be valid and binding obligations
of the Company, in each case enforceable in accordance with their
respective terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether considered in an action at law or equity) and (B) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its
subsidiaries, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary (except for such contraventions that would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contracts,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities or which has already been obtained, taken or made.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus that are not
so described or that any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement, the Prospectus or to be filed or incorporated by reference
as exhibits to the Registration Statement are not described, filed or
incorporated as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus will not be, required
to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public offering
of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made by wire transfer to an
account designated by the Company at the time set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the reasonable judgment of the
Manager, is material and adverse and that makes it, in the
reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Paul, Weiss, Rifkind, Wharton & Garrison, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company is duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
property and to conduct its business as described in the
Prospectus under such laws and the Company is duly qualified
to carry on business and is in good standing in the State of
New York;
(ii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
legally binding obligation of the Company, enforceable in
accordance with its terms, except that enforceability may be
subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and subject to general principles
of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity). The Indenture has been
qualified under the Trust Indenture Act.
(iv) the Offered Securities have been duly authorized
by the Company and when duly executed, issued and delivered by
the Company against payment as provided in the Underwriting
Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance
with their terms, except that enforceability may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity);
(v) the execution and delivery by the Company of the
Underwriting Agreement and Indenture, the issuance and
delivery of the Offered Securities, the consummation by the
Company of the transactions contemplated in the Underwriting
Agreement and the compliance by the Company with the terms of
the Underwriting Agreement and the Indenture do not and will
not (A) result in a violation of the certificate of
incorporation or by-law of the Company, each as in effect on
the date of such opinion, (B) breach or result in a default
under any agreement, indenture or instrument listed as an
exhibit to the Registration Statement or otherwise referred to
in the Registration Statement to which the Company or any of
its subsidiaries is a party or is bound or to which any of the
properties or assets of the Company or any subsidiary is
subject that is material to the Company and its subsidiaries
taken as a whole or (C) violate Applicable Law or any
judgment, order or decree of any court or arbitrator known to
such counsel, except where the breach, default or violation
could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
For purposes of this opinion, the term "Applicable Law" means
the General Corporation Law of the State of Delaware (the
"GCL") and those laws, rules and regulations of the United
States of America and the State of New York, in each case
which in such counsel's experience are normally applicable to
the transactions of the type contemplated by the Underwriting
Agreement. Based on the representations, warranties and
agreements of the Company in Section 1 of the Underwriting
Agreement, no consent, approval, authorization or order of, or
filing, registration or qualification with, any Governmental
Authority, which has not been obtained, taken or made, is
required for the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture or the Offered
Securities, except as may be required by any state securities
or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities, as to which such
counsel need not express any opinion. For purposes of such
opinion, the term "Governmental Authority" means any
executive, legislative, judicial, administrative or regulatory
body of the State of New York, the State of Delaware or the
United States of America;
(vi) the statements (A) in the Prospectus under the
captions "Description of Notes" and "Description of Debt
Securities" and (B) in the Registration Statement under Item
15, in each case to the extent that they relate to legal
matters fairly summarize the matters referred to therein;
(vii) to such counsel's knowledge, there are no legal
proceedings pending against the Company or any of its
subsidiaries that would be required to be described in a
Prospectus or Registration Statement under the Securities Act
that are not so described, or that if determined adversely to
the Company could reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, or could reasonably be expected to materially impair
its ability to perform its obligations under the Underwriting
Agreement, the Offered Securities or the Indenture;
(viii) the Company is not required to be registered
as an investment company under the Investment Company Act of
1940, as amended, and the rules and regulations of the
Commission under that statute;
(ix) (A) the Registration Statement and the
Prospectus, and each amendment or supplement thereto (except
for the financial statements, financial schedules and other
financial or statistical data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to
which such counsel need not express any opinion) as of their
respective effective or issue dates, appear on their face to
have been appropriately responsive in all material respects to
the requirements of the Securities Act and the rules
promulgated thereunder and (B) each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except for the
financial statements, financial schedules and other financial
or statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel need
not express any opinion) appears on its face to have been
appropriately responsive in all material respects when so
filed to the requirements of the Securities Act and the rules
promulgated thereunder;
(x) no facts have come to such counsel's attention to
lead them to believe that (A) the Registration Statement or
any amendment thereto (except for financial statements,
financial schedules and other financial or statistical data
included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need not
express any belief), on the original effective date of the
Registration Statement or on the date of the Underwriting
Agreement, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading or (B) the
Prospectus or any amendment or supplement thereto (except for
the financial statements, financial schedules and other
financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such
counsel need not express any belief), at the time the
Prospectus Supplement was issued or on the date such opinion
is delivered included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Nicholas J. Camera, General Counsel to the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each significant subsidiary of the Company (as
defined in Regulation S-X) has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to
be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(iii) (A) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (B) in "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the
United States federal or New York statutes, rules or
regulations, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein; and
(iv) after due inquiry, such counsel does not know of
any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or
the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(e) The Underwriters shall have received on the Closing Date
an opinion of Davis Polk & Wardwell, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 5(c)(ii), 5(c)(iii), 5(c)(iv) and 5(c)(vi)(A) (but only as
to the statements in the Prospectus under "Description of Notes,"
"Description of Debt Securities" and "Plan of Distribution") and
clauses 5(c)(ix)(A), 5(c)(x)(A) and 5(c)(x)(B) above.
With respect to Sections 5(c)(ix) and 5(c)(x) above, Paul,
Weiss, Rifkind, Wharton & Garrison may state that they do not assume
responsibility for the accuracy or completeness of the statements
contained in the Registration Statement and Prospectus and that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and their review and discussion of the contents thereof, but
are without independent check or verification, except as specified.
With respect to clauses 5(c)(ix)(B), 5(c)(x)(A) and 5(c)(x)(B) above,
Davis Polk & Wardwell may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but
not including documents incorporated therein by reference) and their
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
The opinion of Paul, Weiss, Rifkind, Wharton & Garrison
described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to each Manager, without charge, one signed
copy of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in Section 6(c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request.
(b) Before amending or supplementing the Prospectus with
respect to the Offered Securities, to furnish to the Manager a copy of
each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earnings statement
covering the twelve month period ending not later than 15 months after
the offering date that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the reasonable fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Offered Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the reasonable cost of
printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Offered Securities under
state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities
laws as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) the
cost of printing certificates representing the Offered Securities, (vi)
the costs and charges of any transfer agent, registrar or depositary,
(vii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (viii) all
other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in
this Section, Section 7 entitled "Indemnity and Contribution", and the
last paragraph of Section 9 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may
make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein; provided, however, that the Company will not be liable to any
Underwriter, or to any person who controls such Underwriter within Section 15 of
the Securities Act or Section 20 of the Exchange Act, with respect to any
preliminary prospectus to the extent that such loss, claim, damage, liability or
expense resulted from the fact that such Underwriter sold Offered Securities to
a person to whom such Underwriter failed to send or give, at or prior to the
written confirmation of the sale of Offered Securities to such person, a copy of
the Prospectus, as then amended and supplemented, if the Company had previously
furnished copies thereof to the Underwriters and the loss, claim, damage,
liability or expense of such Underwriter resulted from an untrue statement or
omission or alleged untrue statement or omission of material fact contained in
or omitted from the preliminary prospectus that was corrected in the Prospectus.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall be entitled to
participate in such proceeding and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
without the consent of the indemnified party, be counsel to the indemnifying
party in such action), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel at the
indemnifying party's expense or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to Section 7(a), and by the Company, in
the case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 7(d)(i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Offered Securities they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of this Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses 8(a)(i) through 8(a)(iv), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Underwriters' Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Underwriters' Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Underwriters'
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate amount of Underwriters' Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the amount of
Underwriters' Securities that any Underwriter has agreed to purchase pursuant to
this Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Underwriters' Securities and the aggregate
amount of Underwriters' Securities with respect to which such default occurs is
more than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder, but the Company shall then be under no
further obligation to any underwriter except as provided in Sections 6(g) and 7.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
UNDERWRITING AGREEMENT
October 17, 2000
The Interpublic Group of Companies, Inc.
136 Madison Avenue
New York, New York 10016
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that The Interpublic
Group of Companies, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell $500,000,000 aggregate initial offering price of Debt Securities
(the "Debt Securities"). The Debt Securities are referred to herein as the
"Offered Securities." The Debt Securities will be issued pursuant to the
provisions of an Indenture dated as of the Closing Date (the "Indenture")
between the Company and The Bank of New York, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of 99.106% of the principal amount of
Debt Securities:
Principal Amount of
Name Debt Securities
- --------------------------------- ------------------------
Chase Securities Inc. $212,500,000
Morgan Stanley & Co. Incorporated $212,500,000
HSBC Securities (USA) Inc. $37,500,000
Banc of America Securities LLC $37,500,000
------------
Total......................................$500,000,000
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Davis Polk & Wardwell at 10:00 a.m. (New York City
time) on October 20, 2000, or at such other time, not later than 5:00 p.m. (New
York City time) on October 27, 2000 as shall be designated by the Manager. The
time and closing of such payment and delivery are hereinafter referred to as the
Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated September 15, 2000 and the Prospectus Supplement dated October 17, 2000,
including the following:
Terms of Debt Securities
Maturity Date: October 15, 2005
Interest Rate: 7.875%
Redemption Provisions: As stated in the Prospectus
Supplement
Interest Payment Dates: April 15 and October 15 of
each year, commencing April
15, 2001, and on the Maturity
Date
All provisions contained in the document entitled The Interpublic Group of
Companies, Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated October 17, 2000, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement, and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named herein
By: /s/ SUZETTE W. SANDS
-------------------------------
Name: SUZETTE W. SANDS
Title: Managing Director
By: /s/ HAROLD J. HENDERSHOT
-------------------------------
Name: HAROLD J. HENDERSHOT
Title: Vice President
Accepted:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ NICHOLAS J. CAMERA
---------------------------------
Name: NICHOLAS J. CAMERA
Title: Senior Vice President
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 2000
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), and the Company agrees
to sell to the undersigned the Company's securities described in Schedule A
annexed hereto (the "Securities"), offered by the Company's Prospectus dated
______________, 2000 and Prospectus Supplement dated ________________, 2000,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company, Securities in the
principal amount and number on the delivery dates as set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
(Purchaser)
By:
(Title)
(Address)
Accepted:
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By:
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
- ------------------ ----------------------- ----------------
- ------------------ ----------------------- ----------------
SCHEDULE A
Securities:
Principal Amounts or Numbers to be Purchased:
Purchase Price:
Delivery: