As filed with the Securities and Exchange Commission on December 26, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VIACOM INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
04-2949533
(I.R.S. Employer Identification No.)
1515 Broadway
New York, NY 10036
(212) 258-6000
(Address, including zip code, and telephone number, including area code, of
Registrants' principal executive offices)
-------------------------------------
Michael D. Fricklas, Esq.
Executive Vice President,
General Counsel and Secretary
Viacom Inc.
1515 Broadway
New York, New York 10036
(212) 258-6000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
-------------------------------------
Copies to:
Stephen T. Giove, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
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Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Amount to Offering Price Aggregate Registration Fee
Title of Each Class of be Per Unit (1) Offering
Securities to be Registered registered Price(1)(2)
- -----------------------------------------------------------------------------------------------------------------------
Senior Debt Securities and Senior
Subordinated Debt Securities of
Viacom(3)(5) ................................
Preferred Stock of Viacom(4).................
Class B Common Stock of Viacom to be
issued upon conversion of certain
securities(5) ...............................
Warrants of Viacom(6)........................
Total........................................ (7) $1,250,000
=======================================================================================================================
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrants in connection with the issuance by the
Registrants of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely
for the purpose of calculating the registration fee pursuant to Rule 457
under the Securities Act.
(3) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of senior debt securities or senior
subordinated debt securities of Viacom as may be sold, from time to time.
If any senior debt securities or senior subordinated debt securities are
issued at an original issue discount, then the offering price shall be in
such greater principal amount as shall result in an aggregate initial
offering price not to exceed $5,000,000,000.
(4) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of preferred stock of Viacom as may be sold
from time to time.
(5) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of Class B common stock of Viacom as may
from time to time be issued upon conversion of the senior debt securities,
senior subordinated debt securities or preferred stock.
(6) Subject to note (7) below, there is being registered hereunder an
indeterminate amount and number of warrants of Viacom as may be sold from
time to time, representing rights to purchase certain of the senior debt
securities, senior subordinated debt securities or preferred stock of
Viacom being registered hereunder.
(7) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$5,000,000,000 or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
Subject To Completion
Preliminary Prospectus, dated December 26, 2000
PROSPECTUS
$5,000,000,000
VIACOM INC.
--------------------
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer and sale is not permitted.
We may offer and sell, from time to time, in one or more offerings and
series, together or separately:
o senior debt securities of Viacom;
o senior subordinated debt securities of Viacom;
o preferred stock of Viacom; and
o warrants representing rights to purchase senior debt securities,
senior subordinated debt securities or preferred stock of Viacom.
The senior debt securities, senior subordinated debt securities and
preferred stock of Viacom may be convertible into Class B Common Stock of
Viacom.
When we offer securities we will provide you with a prospectus
supplement or term sheet describing the specific terms of the specific issue of
securities including the offering price of the securities. You should carefully
read this prospectus and the prospectus supplements or term sheets relating to
the specific issue of securities before you decide to invest in any of these
securities.
--------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , .
In this prospectus we use the term "Viacom" to refer to Viacom Inc. The
terms "we," "us," and "our" refer to Viacom. References to "$" and "dollars" are
to United States dollars.
You should rely only on the information contained in or incorporated by
reference in this prospectus. Viacom has not authorized anyone to provide you
with different information. If anyone provides you with different or additional
information, you should not rely on it. Viacom is not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information contained in or incorporated by reference in this
prospectus is accurate as of any date other than the date on the front of this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since then.
TABLE OF CONTENTS
Page
----
ABOUT THIS PROSPECTUS..........................................................1
WHERE YOU CAN FIND MORE INFORMATION............................................2
VIACOM.........................................................................4
USE OF PROCEEDS................................................................5
RECENT DEVELOPMENTS............................................................5
RATIO OF EARNINGS TO FIXED CHARGED.............................................6
DESCRIPTION OF THE DEBT SECURITIES.............................................7
DESCRIPTION OF PREFERRED STOCK................................................18
DESCRIPTION OF COMMON STOCK...................................................23
DESCRIPTION OF WARRANTS.......................................................25
PLAN OF DISTRIBUTION..........................................................28
LEGAL MATTERS.................................................................29
EXPERTS.......................................................................29
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC utilizing the "shelf" registration process. Under this shelf process, we
may sell the securities described in this prospectus in one or more offerings up
to a total dollar amount of $5,000,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document that we file
at the Public Reference Room of the SEC at 450 Fifth Street, NW, Washington,
D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. You may also inspect our filings at
the regional offices of the SEC located at Citicorp, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York
10048 or over the Internet at the SEC's Website at http://www.sec.gov.
Our Class A common stock and Class B common stock are listed on the New
York Stock Exchange. Information about us is also available at the New York
Stock Exchange.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. Any statement,
including financial statements, contained in our Annual Report on Form 10-K for
the year ended December 31, 1999 shall be deemed to be modified or superseded to
the extent that a statement, including financial statements, contained in this
prospectus or in any other later incorporated document modifies or supersedes
that statement. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act, including filings made after the date of the initial
registration statement and prior to effectiveness of the registration statement,
until we sell all of the securities:
(a) Our Registration Statement on Form S-4, dated November 24, 1999;
(b) Our Annual Report on Form 10-K for the year ended December 31,
1999, as amended on April 28, 2000;
(c) Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2000, June 30, 2000 and September 30, 2000;
(d) Our Current Report on Form 8-K dated May 4, 2000 as amended on
July 17, 2000, and our Current Reports on Form 8-K dated August
5, 2000, August 15, 2000, October 31, 2000, November 3, 2000 and
December 4, 2000;
(e) Our definitive Proxy Statement dated June 5, 2000;
(f) CBS Corporation Annual Report on Form 10-K for the year ended
December 31, 1999, as amended on April 28, 2000;
(g) The financial statements of Infinity Broadcasting Corporation, as
set forth in Item 8 to Infinity's Annual Report on Form 10-K for
the year ended December 31, 1999;
(h) The financial statements of Infinity, as set forth in Item 1 to
Infinity's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000; and
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(i) Our Registration Statement on Form S-4, dated November 22, 2000,
as amended by Form S-4/A dated December 7, 2000.
You may request a copy of these filings at no cost, by telephoning or
writing to us at the following address:
Viacom Inc.
1515 Broadway
New York, New York 10036
Attn: Investor Relations
Telephone number (212) 258-6000
3
VIACOM
Viacom is a diversified entertainment company with operations in seven
segments: Cable Networks, Television, Entertainment, Video, Publishing, Online,
and Infinity. The Cable Networks segment operates MTV: MUSIC TELEVISION(R),
SHOWTIME(R), NICKELODEON(R)/NICK AT NITE(R), VH1 MUSIC FIRST(R), TV LAND(R),
TNN: THE NATIONAL NETWORKTM (formerly, The Nashville Network) and COUNTRY MUSIC
TELEVISIONTM, among other program services. The Television segment consists of
CBS(R) and UPN(R) television networks, Viacom's 39 broadcast television
stations, and production and distribution of television programming through
PARAMOUNT TELEVISION(R), VIACOM(R) PRODUCTIONS, SPELLING TELEVISION(R), BIG
TICKET TELEVISION(R) and CBS(R) ENTERPRISES (including KING WORLD(R)
PRODUCTIONS). The Entertainment segment produces and distributes theatrical
motion pictures through PARAMOUNT PICTURES(R), operates movie theater and music
publishing operations and, through PARAMOUNT PARKS(R), owns and operates five
theme parks and a themed attraction in the United States and Canada. The Video
segment consists of an approximately 82% equity interest in BLOCKBUSTER(R) INC.,
which operates and franchises video stores worldwide, primarily under the
BLOCKBUSTER(R) brand. The remainder of Blockbuster's common stock was sold to
the public in August 1999. The Publishing segment publishes and distributes
consumer books and related multimedia products, under such imprints as SIMON &
SCHUSTER(R), POCKET BOOKS(R), SCRIBNER(R) and THE FREE PRESSTM. The Online
segment provides online music and children's destinations featuring
entertainment, information, community tools and e-commerce, through SonicNet.com
and Internet sites currently related to MTV: MUSIC TELEVISION, NICKELODEON/NICK
AT NITE, VH1 MUSIC FIRST and COUNTRY MUSIC TELEVISION. The Online segment also
includes other Internet businesses, which consist primarily of the operation of
the Internet site CBS.com, and investment in iWon.com. Viacom also has
investments in other Internet based companies such as MarketWatch.com, Inc.,
SportsLine.com, Inc. and Hollywood.com, Inc. The Infinity segment consists of an
approximately 64.2% equity interest in Infinity Broadcasting Corporation which
operates radio stations and outdoor advertising properties, including INFINITY
BROADCASTING(R), INFINITY OUTDOORTM and TDI(R). As described in more detail
under "Recent Developments" below, Viacom and Infinity have entered into a
merger agreement under which Viacom will acquire the approximately 35.8% equity
interest in Infinity that Viacom does not currently own. On November 2, 2000,
Viacom entered into an agreement with BET Holding II, Inc. to acquire the Black
Entertainment Television cable network. Viacom was incorporated in 1986 under
the laws of the State of Delaware. Viacom's principal offices are located at
1515 Broadway, New York, New York 10036 and our telephone number is (212)
258-6000.
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USE OF PROCEEDS
Unless indicated otherwise in a prospectus supplement, Viacom expects
to use the net proceeds from the sale of its securities for general corporate
purposes, including repayment of borrowings, working capital and capital
expenditures.
RECENT DEVELOPMENTS
On May 4, 2000, CBS Corporation merged with and into Viacom. The total
purchase price of approximately $39.8 billion represents the issuance of 825.5
million shares of Viacom non-voting Class B common stock and 11,004 shares of
Viacom Series C convertible preferred stock (which were subsequently converted
into shares of Viacom non-voting Class B common stock), the estimated fair value
of CBS stock options which were assumed by Viacom, and estimated transaction
costs. The merger was accounted for by the purchase method of accounting and the
purchase price was allocated to the tangible and identifiable intangible assets
acquired and liabilities assumed, according to their respective fair values,
with the excess purchase price being allocated to goodwill. In addition, Viacom
assumed approximately $3.7 billion of CBS debt.
On October 30, 2000, Viacom and Infinity entered into a merger
agreement under which Viacom will acquire all of the issued and outstanding
shares of Infinity common stock that it does not currently own,which is 35.8% of
the total amount issued and outstanding, pursuant to a merger in which Viacom
will exchange 0.592 of a share of Viacom non-voting Class B common stock for
each share of Infinity Class A common stock. Viacom's Board of Directors and
Infinity's Board of Directors approved the merger agreement after approval by a
special committee of Infinity's independent directors. The special committee was
advised by separate legal and financial advisors. Viacom expects the merger to
be completed during the week of January 8, 2001. As of October 30, 2000, there
were 390.8 million shares of Infinity Class A common stock outstanding held by
shareholders other than Viacom.
On November 2, 2000, Viacom announced an agreement to acquire Black
Entertainment Television for approximately $2.3 billion of Viacom non-voting
Class B common stock plus the assumption of approximately $575 million of debt.
The tax-free transaction is subject to customary regulatory approvals. The
final exchange ratio will be based on the trading prices of Viacom non-voting
Class B common stock during a measurement period immediately before the closing
of the transaction, which is expected to occur in the first quarter of 2001.
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RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The ratios of earnings to fixed charges for Viacom are set forth below,
on a pro forma basis, for the nine months ended September 30, 2000 and the year
ended December 31, 1999 to give effect to the merger of CBS into Viacom and the
contemplated merger of Infinity into a subsidiary of Viacom as if the mergers
occurred on January 1, 1999, and on a historical basis, for the nine months
ended September 30, 2000 and for each year in the five-year period ended
December 31, 1999.
For purposes of computing the following ratios, earnings represents
income from continuing operations before fixed charges and taxes. Fixed charges
represent interest expense, amortization of capitalized interest and such
portion of rental expense which represents an appropriate interest factor.
Nine Months Year Ended December 31,
Ended ----------------------------------------------------------------
September 30, 2000 1999 1999 1998 1997 1996 1995
----------------------------------------------- -------------------------------- ---- ---- ---- ---- ----
Pro Forma for Pro Forma for Pro Forma for Pro Forma for
Viacom Viacom/CBS Viacom/Infinity Viacom/CBS Viacom/Infinity
Historical Merger Merger Merger Merger Viacom Historical
---------- ------ ------ ------ ------ ------------------------------
Ratio of
Earnings to
Fixed
Charges... 1.3x 1.2x 1.0x 1.5x 1.4x 2.2x 1.1x 2.0x 1.4x 1.5x
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DESCRIPTION OF THE DEBT SECURITIES
The following description of Viacom's senior and senior subordinated
debt securities summarizes the general terms and provisions of its debt
securities to which any prospectus supplement may relate. The following
description also describes the specific terms of Viacom's debt securities and
the extent, if any, to which the general provisions summarized below may apply
to any series of its debt securities in the prospectus supplement relating to
such series. In this prospectus, "debt securities" will be used to refer to
senior and senior subordinated debt securities.
Viacom may issue its senior debt securities from time to time, in one
or more series under a senior indenture, between Viacom and The Bank of New
York, as senior trustee, or another senior trustee named in a prospectus
supplement. The form of senior indenture is filed as an exhibit to the
registration statement. Viacom may issue its senior subordinated debt securities
from time to time, in one or more series under a senior subordinated indenture,
between Viacom and The Bank of New York, as senior subordinated trustee, or
another senior subordinated trustee named in a prospectus supplement. The form
of senior subordinated indenture is filed as an exhibit to the registration
statement. Together the senior indenture and the senior subordinated indenture
are called the indentures, and together the senior trustee and the senior
subordinated trustee are called the debt trustees. None of the indentures will
limit the amount of debt securities that may be issued. The applicable indenture
will provide that debt securities may be issued up to an aggregate principal
amount authorized by Viacom and may be payable in any currency or currency unit
designated by Viacom or in amounts determined by reference to an index.
General
The senior debt securities will be unsecured and will rank equally with
Viacom's other unsecured and unsubordinated debt, unless Viacom is required to
secure the senior debt securities pursuant to a prospectus supplement. Viacom's
obligations under any senior subordinated debt securities will be subordinate in
right of payment to all of its senior indebtedness, and will be described in an
accompanying prospectus supplement. Viacom will issue debt securities from time
to time and offer its debt securities on terms determined by market conditions
at the time of their sale.
Viacom may issue debt securities in one or more series with the same or
various maturities, at par, at a premium, or at a discount. Any debt securities
bearing no interest or interest at a rate which at the time of issuance is below
market rates will be sold at a discount, which may be substantial, from their
stated principal amount. Viacom will describe the federal income tax
consequences and other special considerations applicable to any substantially
discounted debt securities in a related prospectus supplement.
You should refer to a prospectus supplement for the following terms of
the debt securities offered by this registration statement:
o the designation, aggregate principal amount and authorized
denominations of the debt securities;
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o the percentage of the principal amount at which Viacom will issue
the debt securities;
o the date or dates on which the debt securities will mature;
o the annual interest rate or rates of the debt securities, or the
method of determining the rate or rates;
o the date or dates on which any interest will be payable, the date
or dates on which payment of any interest will commence and the
regular record dates for the interest payment dates;
o the terms of any mandatory or optional redemption, including any
provisions for any sinking, purchase or other similar funds, or
repayment options;
o the currency, currencies or currency units for which the debt
securities may be purchased and in which the principal, any
premium and any interest may be payable;
o if the currency, currencies or currency units for which the debt
securities may be purchased or in which the principal, any
premium and any interest may be payable is at Viacom's election
or the purchaser's election, the manner in which the election may
be made;
o if the amount of payments on the debt securities is determined by
an index based on one or more currencies or currency units, or
changes in the price of one or more securities or commodities,
the manner in which the amounts may be determined;
o the extent to which any of the debt securities will be issuable
in temporary or permanent global form, and the manner in which
any interest payable on a temporary or permanent global security
will be paid;
o the terms and conditions upon which the debt securities may be
convertible into or exchanged for common stock, preferred stock,
or indebtedness or other securities of any kind;
o information with respect to book-entry procedures, if any;
o a discussion of the federal income tax and special
considerations, procedures and limitations with respect to the
debt securities; and
o any other specific terms of the debt securities not inconsistent
with the applicable indenture.
If Viacom sells any of the debt securities for one or more foreign
currencies or foreign currency units or if the principal of, premium, if any, or
interest on any series of debt securities
8
will be payable in one or more foreign currencies or foreign currency units, it
will describe the restrictions, elections, federal income tax consequences,
specific terms and other information with respect to the issue of debt
securities and the currencies or currency units in the related prospectus
supplement.
Unless specified otherwise in a prospectus supplement, the principal
of, premium on, and interest on the debt securities will be payable, and the
debt securities will be transferable, at the corporate trust office of the
applicable debt trustee in New York, New York. However, Viacom may make payment
of interest, at its option, by check mailed on or before the payment date to the
address of the person entitled to the interest payment or by transfer to an
account held by the payee as it appears on the registry books of the debt
trustee, Viacom or its agents.
Unless specified otherwise in a prospectus supplement, Viacom will
issue the debt securities in registered form and in denominations of $1,000 and
any integral multiple of $1,000. Bearer securities, other than those issued in
global form, will be issued in denominations of $5,000. No service charge will
be made for any transfer or exchange of any debt securities, but Viacom may,
except in specific cases not involving any transfer, require payment of a
sufficient amount to cover any tax or other governmental charge payable in
connection with the transfer or exchange.
Viacom's rights and the rights of its creditors, including holders of
debt securities, to participate in any distribution of assets of any Viacom
subsidiary upon its liquidation or reorganization or otherwise is subject to the
prior claims of creditors of the subsidiary, except to the extent that Viacom's
claims as a creditor of the subsidiary may be recognized.
Viacom's operations are conducted primarily through its subsidiaries
and, therefore, Viacom is dependent upon the earnings and cash flow of its
subsidiaries to meet its obligations, including obligations under the debt
securities. The debt securities will be effectively subordinated to all
indebtedness of Viacom's subsidiaries.
Global Securities
Viacom may issue debt securities of a series, in whole or in part, in
the form of one or more global securities and will deposit them with or on
behalf of a depositary identified in the prospectus supplement relating to that
series. Viacom may issue global securities in fully registered or bearer form
and in either temporary or permanent form. Unless and until it is exchanged in
whole or in part, for the individual debt securities represented thereby, a
global security may not be transferred except as a whole by the depositary for
the global security 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 nominee of the depositary to a successor or any nominee of a
successor.
The specific terms of the depositary arrangement relating to a series
of debt securities will be described in the prospectus supplement relating to
that series. It is anticipated that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a global security, the depositary for the global
security or its nominee will credit on its book entry registration and transfer
system the principal amounts of
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the individual debt securities represented by the global security to the
accounts of persons that have accounts with the depositary. The accounts will be
designated by the dealers, underwriters or agents with respect to the debt
securities or by Viacom if the debt securities are offered and sold directly by
it. Ownership of beneficial interests in a global security will be limited to
persons that have accounts with the applicable depositary participants or
persons that hold interests through participants. Ownership of beneficial
interests in the global security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by:
o the applicable depositary or its nominee, with respect to
interests of participants; and
o the records of participants, with respect to interests of persons
other than participants.
The laws of some states require that purchasers of securities take
physical delivery of the securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a global security.
So long as the depositary for a global security or its nominee is the
registered owner of the global security, the depositary or the nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable indenture. Except as
provided below, owners of beneficial interests in a global security will:
o not be entitled to have any of the individual debt securities of
the series represented by the global security registered in their
names;
o not receive or be entitled to receive physical delivery of any
debt security of that series in definitive form; and
o not be considered the owners or holders thereof under the
applicable indenture governing the debt securities.
Payments of principal of, any premium on, and any interest on
individual debt securities represented by a global security registered in the
name of a depositary or its nominee will be made to the depositary or its
nominee as the registered owner of the global security representing the debt
securities. Neither Viacom, the applicable debt trustee for the debt securities,
any paying agent, nor the security registrar for the debt securities will have
any responsibility or liability for the records relating to or payments made on
account of beneficial ownership interests of the global security for the debt
securities or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
Viacom expects that the depositary for a series of debt securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent global security representing any of the debt securities,
will immediately credit participants' accounts with payments in amounts
proportionate to their beneficial interests in the principal amount of the
global security for the debt securities as shown on the records of the
depositary or its nominee.
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Viacom also expects that payments by participants to owners of beneficial
interests in the global security held through the participants will be governed
by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name." The payments will be the responsibility of those participants.
If the depositary for a series of debt securities is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by Viacom within 90 days, Viacom will issue
individual debt securities of that series in exchange for the global security
representing that series of debt securities. In addition, Viacom may at any time
and in its sole discretion, subject to any limitations described in the
prospectus supplement relating to the debt securities, determine not to have any
debt securities of a series represented by one or more global securities. In
that event, Viacom will issue individual debt securities of that series in
exchange for the global security or securities representing that series of debt
securities. Further, if Viacom so specifies with respect to the debt securities
of a series, an owner of a beneficial interest in a global security representing
debt securities of that series may, on terms acceptable to Viacom, the
applicable debt trustee and the depositary for such global security, receive
individual debt securities of that series in exchange for the beneficial
interests, subject to any limitations described in the prospectus supplement
relating to the debt securities. In any such instance, an owner of a beneficial
interest in a global security will be entitled to physical delivery of
individual debt securities of the series represented by the global security
equal in principal amount to the beneficial interest and to have the debt
securities registered in its name. Individual debt securities of the series so
issued will be issued in denominations, unless otherwise specified by Viacom, of
$1,000 and integral multiples of $1,000.
Merger or Consolidation
Under the terms of the indentures, Viacom is permitted to consolidate
or merge with another entity or to sell all or substantially all of its assets
to another entity, subject to Viacom's meeting all of the following conditions:
o the resulting entity (other than Viacom) must agree through a
supplemental indenture to be legally responsible for the debt
securities;
o immediately following the consolidation, merger, sale or
conveyance, no Event of Default or Default (as defined below)
shall have occurred and be continuing;
o the surviving entity to the transaction must be a corporation
organized under the laws of the United States or any state;
o Viacom must deliver certain certificates and documents to the
debt trustee; and
o Viacom must satisfy any other requirements specified in the
prospectus supplement relating to a particular series of debt
securities.
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In the event that Viacom consolidates or merges with another entity
or sells all or substantially all of its assets to another entity, the
surviving entity shall be substituted for Viacom under the indentures and
Viacom shall be discharged from all of its obligations under the indentures.
Defaults and Remedies
Holders of debt securities will have specified rights if an Event of
Default occurs in respect of the debt securities of that series, as described
below.
The term "Event of Default" in respect of the debt securities of a
particular series means any of the following:
o Viacom does not pay interest on a debt security of such series
within 30 days of its due date;
o Viacom does not pay the principal of or any premium on a debt
security of such series when due and payable, at its maturity, or
upon its acceleration or redemption;
o Viacom remains in breach of a covenant or warranty in respect of
an indenture for 60 days after Viacom receives a written notice
of default; the notice must be sent by either the debt trustee or
holders of at least 25% in principal amount of a series of
outstanding debt securities; or
o Viacom files for bankruptcy, or other specified events of
bankruptcy, insolvency or reorganization occur.
If an Event of Default has occurred, the debt trustee or the holders of
at least 25% in principal amount of the debt securities of the affected series
may declare the entire principal amount (and premium, if any) of, and all the
accrued interest on, the debt securities of that series to be due and
immediately payable. This is called a declaration of acceleration of maturity.
There is no action on the part of the debt trustee or any holder of debt
securities required for such declaration if the Event of Default is a
bankruptcy, insolvency or reorganization. Holders of a majority in principal
amount of the debt securities of a series may also waive certain past defaults
under the indenture on behalf of all of the holders of such series of debt
securities. A declaration of acceleration of maturity may be canceled, under
specified circumstances, by the holders of at least a majority in principal
amount of a series of debt securities and the debt trustee.
Except in cases of default, where the debt trustee has special duties, a
debt trustee is not required to take any action under an indenture at the
request of holders unless the holders offer the debt trustee reasonable
protection from expenses and liability satisfactory to the debt trustee. If a
reasonable indemnity is provided, the holders of a majority in principal amount
of a series of debt securities may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the debt trustee. The debt trustee may refuse to follow those directions in
specified circumstances. No delay or omission in exercising any right or remedy
will be treated as a waiver of the right, remedy or Event of Default.
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Before holders are allowed to bypass the debt trustee and bring a
lawsuit or other formal legal action or take other steps to enforce their rights
or protect their interests relating to the debt securities, the following must
occur:
o holders must give the debt trustee written notice that an Event
of Default has occurred and remains uncured;
o holders of at least 25% in principal amount of the outstanding
debt securities of a series must make a written request that the
debt trustee take action because of the default and must offer
the debt trustee indemnity satisfactory to the debt trustee
against the cost and other liabilities of taking that action;
o The debt trustee must have failed to take action for 60 days
after receipt of the notice and offer of indemnity; and
o holders of a majority in principal amount of the debt securities
of a series must not have given the debt trustee a direction
inconsistent with the above notice for a period of 60 days after
the debt trustee has received the notice.
However, holders are entitled at any time to bring a lawsuit for the
payment of money due on the debt securities on or after the due date.
Modification of the Indentures
The indentures provide that Viacom and the applicable debt trustee may,
without the consent of any holders of debt securities, enter into supplemental
indentures for the purposes, among other things, of:
o adding to Viacom's covenants;
o adding additional events of default;
o establishing the form or terms of any series of debt securities;
or
o curing ambiguities or inconsistencies in the indenture or making
other provisions.
With specific exceptions, the applicable indenture or the rights of the
holders of the debt securities may be modified by Viacom and the applicable debt
trustee with the consent of the holders of a majority in aggregate principal
amount of the debt securities of each series affected by the modification then
outstanding, but no modification may be made without the consent of the holder
of each outstanding debt security affected which would:
o change the maturity of any payment of principal of, or any
premium on, or any installment of interest on any debt security;
o change the terms of any sinking fund with respect to any debt
security;
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o reduce the principal amount of, or the interest or any premium
on, any debt security upon redemption or repayment at the option
of the holder;
o change any obligation of Viacom to pay additional amounts;
o change any place of payment where, or the currency in which, any
debt security or any premium or interest is payable;
o impair the right to sue for the enforcement of any payment on or
with respect to any debt security; or
o reduce the percentage in principal amount of outstanding debt
securities of any series required to consent to any supplemental
indenture, or consent to any waiver of compliance with provisions
of the applicable indenture or specific defaults and their
consequences provided for in the indenture, or otherwise modify
the sections in the indenture relating to these consents.
Defeasance and Covenant Defeasance
Viacom may elect either (i) to defease and be discharged from any and
all obligations with respect to the debt securities (except as otherwise
provided in the applicable indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants that are described in the
applicable indenture ("covenant defeasance"), upon the deposit with the
appropriate debt trustee, in trust for such purpose, of money and/or government
obligations that through the payment of principal and interest in accordance
with their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of, premium, if any and interest on the debt
securities of such series to maturity or redemption, as the case may be, and any
mandatory sinking fund or analogous senior payments thereon. As a condition to
defeasance or covenant defeasance, Viacom must deliver to the debt trustee an
opinion of counsel to the effect that the holders of the debt securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to United States 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 or
covenant defeasance had not occurred. Such opinion of counsel, in the case of
defeasance under clause (i) above, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the Indenture.
Viacom may exercise its defeasance option with respect to the debt
securities of any series notwithstanding its prior exercise of its covenant
defeasance option. If Viacom exercises its defeasance option, payment of the
debt securities of such series may not be accelerated because of an event of
default. If Viacom exercises its covenant defeasance option, payment of the
securities of such series may not be accelerated by reference to any covenant
from which Viacom is released as described under clause (ii) above. However, if
acceleration were to occur for other reasons, the realizable value at the
acceleration date of the money and government obligations in the defeasance
trust could be less than the principal and interest then due on the debt
securities of such series, in that the required deposit in the defeasance trust
is based upon
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scheduled cash flows rather than market value, which will vary depending upon
interest rates and other factors.
Concerning the Debt Trustees
Viacom will identify the debt trustees in the relevant prospectus
supplement. In specific instances, Viacom or the holders of a majority of the
then outstanding principal amount of the debt securities issued under an
indenture may remove the debt trustee and appoint a successor debt trustee. The
debt trustee may become the owner or pledgee of any of the debt securities with
the same rights, subject to conflict of interest restrictions, it would have if
it were not the debt trustee. The debt trustee and any successor debt trustee
must be eligible to act as a trustee under the Section 310(a)(1) of the Trust
Indenture Act of 1939, and shall have a combined capital and surplus of at least
$50,000,000 and be subject to examination by federal or state authority. Subject
to applicable law relating to conflicts of interest, the debt trustee may also
serve as trustee under other indentures relating to debt securities issued by
Viacom or its affiliated companies and may engage in commercial transactions
with Viacom and its affiliated companies. The initial debt trustee under each
indenture is The Bank of New York.
Senior Debt Securities
In addition to the provisions previously described in this prospectus
and applicable to all debt securities, the following description of Viacom's
senior debt securities summarizes the general terms and provisions of its senior
debt securities to which any prospectus supplement may relate. Viacom will
describe the specific terms of the senior debt securities offered by any
prospectus supplement and the extent, if any, to which the general provisions
summarized below may apply to any series of its senior debt securities in the
prospectus supplement relating to that series.
Ranking of Senior Debt Securities. Unless specified otherwise in a
prospectus supplement for a particular series of debt securities, all series of
senior debt securities will be Viacom's senior indebtedness and will be direct,
unsecured obligations of Viacom ranking equally with all of Viacom's other
unsecured and unsubordinated indebtedness. The debt securities of Viacom will be
effectively subordinated to all existing and future liabilities, including
indebtedness, of Viacom's subsidiaries.
Senior Subordinated Debt Securities
In addition to the provisions previously described in this prospectus
and applicable to all debt securities, the following description of Viacom's
senior subordinated debt securities summarizes the general terms and provisions
of its senior subordinated debt securities to which any prospectus supplement
may relate. The specific terms of Viacom's senior subordinated debt securities
offered by any prospectus supplement and the extent, if any, to which the
general provisions summarized below may apply to any series of senior
subordinated debt securities will be described in the prospectus supplement
relating to that series.
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Subordination. The senior subordinated debt securities will be
subordinated in right of payment to Viacom's senior indebtedness to the extent
set forth in the applicable prospectus supplement.
The payment of the principal of, premium, if any, and interest on the
senior subordinated debt securities will be subordinated in right of payment to
the prior payment in full of all of Viacom's senior indebtedness. Viacom may not
make payment of principal of, premium, if any, or interest on the senior
subordinated debt securities and may not acquire, or make payment on account of
any sinking fund for, the senior subordinated debt securities unless full
payment of amounts then due for principal, premium, if any, and interest then
due on all senior indebtedness by reason of the maturity thereof has been made
or duly provided for in cash or in a manner satisfactory to the holders of the
senior indebtedness. In addition, the senior subordinated indenture provides
that if a default has occurred giving the holders of the senior indebtedness the
right to accelerate the maturity of that senior indebtedness, or an event has
occurred which, with the giving of notice, or lapse of time, or both, would
constitute an event of default, then unless and until that event has been cured
or waived or has ceased to exist, no payment of principal, premium, if any, or
interest on the senior subordinated debt securities and no acquisition of, or
payment on account of a sinking fund for, the senior subordinated debt
securities may be made. Viacom will give prompt written notice to the senior
subordinated trustee of any default under any senior indebtedness or under any
agreement pursuant to which senior indebtedness may have been issued. The senior
subordinated indenture provisions described in this paragraph, however, do not
prevent Viacom from making a sinking fund payment with senior subordinated debt
securities acquired prior to the maturity of senior indebtedness or, in the case
of default, prior to the default and notice thereof. Upon any distribution of
assets in connection with Viacom's dissolution, liquidation or reorganization,
all senior indebtedness must be paid in full before the holders of the senior
subordinated debt securities are entitled to any payments whatsoever. As a
result of these subordination provisions, in the event of Viacom's insolvency,
holders of the senior subordinated debt securities may recover ratably less than
the holders of Viacom's senior indebtedness.
For purposes of the description of the senior subordinated debt
securities, the term "senior indebtedness" means the principal of and premium,
if any, and interest on the following, whether outstanding on the date of
execution of the senior subordinated indenture or incurred or created after the
execution:
o Viacom's indebtedness for money borrowed by it, including
purchase money obligations with an original maturity in excess of
one year, or evidenced by securities, other than the senior
subordinated debt securities or junior subordinated debt
securities, notes, bankers' acceptances or other corporate debt
securities or similar instruments issued by Viacom;
o obligations with respect to letters of credit;
o obligations under Capitalized Leases (as defined below);
o any obligation of a third party if secured by a lien on Viacom's
assets;
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o Viacom's indebtedness constituting a guarantee of indebtedness of
others of the type referred to in the preceding two bullet
points; or
o renewals, extensions or refundings of any of the indebtedness
referred to in the preceding bullet points unless, in the case of
any particular indebtedness, renewal, extension or refunding,
under the express provisions of the instrument creating or
evidencing the same, or pursuant to which the same is
outstanding, the indebtedness or the renewal, extension or
refunding thereof is not superior in right of payment to the
senior subordinated debt securities.
As of September 30, 2000, a total of $11.4 billion of Viacom's
indebtedness was senior indebtedness.
Certain Definitions
The following definitions are applicable to the indentures:
"Capitalized Lease" means any obligation of a person to pay rent or
other amounts incurred with respect to real property or equipment acquired or
leased by such person and used in its business that is required to be recorded
as a capital lease in accordance with generally accepted accounting principles
consistently applied as in effect from time to time.
"Indebtedness" of any person means, without duplication (i) any
obligation of such person for money borrowed, (ii) any obligation of such person
evidenced by bonds, debentures, notes or other similar instruments, (iii) any
reimbursement obligation of such person in respect of letters of credit or other
similar instruments which support financial obligations which would otherwise
become Indebtedness, (iv) any obligation of such person under Capitalized Leases
(other than in respect of (x) telecommunications equipment including, without
limitation, satellite transponders, and (y) theme park equipment and
attractions), and (v) any obligation of any third party to the extent secured by
a Lien on the assets of such person; provided, however, that "Indebtedness" of
such person shall not include any obligation of such person (i) to any
Subsidiary of such person or to any person with respect to which such person is
a Subsidiary or (ii) specifically with respect to the production, distribution
or acquisition of motion pictures or other programming rights, talent or
publishing rights.
"Lien" means any pledge, mortgage, lien, encumbrance or other security
interest.
"Principal Property" means any parcel of real property and related
fixtures or improvements (other than telecommunications equipment, including,
without limitation, satellite transponders) owned by Viacom or any wholly owned
Subsidiary of Viacom and located in the United States, the aggregate book value
of which on the date of determination exceeds $1.0 billion, other than any such
real property and related fixtures or improvements which, as determined in good
faith by the board of directors of Viacom, is not of material importance to the
total business conducted by Viacom and its Subsidiaries, taken as a whole.
"Restricted Subsidiary" means a corporation, all of the outstanding
voting stock of which is owned, directly or indirectly, by Viacom or by one or
more of its Subsidiaries, or by Viacom
17
and one or more of its Subsidiaries, which is incorporated under the laws of a
State of the United States, and which owns a Principal Property.
"Subsidiary" of any person means (i) a corporation, a majority of the
outstanding voting stock of which is at the time, directly or indirectly, owned
by such person, by one or more Subsidiaries of such person, or by such person
and one or more Subsidiaries thereof or (ii) any other person (other than a
corporation), including, without limitation, a partnership or joint venture, in
which such person, one or more Subsidiaries thereof, or such person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least a majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other person performing
similar functions).
DESCRIPTION OF PREFERRED STOCK
The following description sets forth certain general terms of preferred
stock which Viacom may issue. The terms of any series of the preferred stock
will be described in the applicable prospectus supplement relating to the
preferred stock being offered. The description set forth below and in any
prospectus supplement is not complete, and is subject to, and qualified in its
entirety by reference to, Viacom's restated certificate of incorporation and the
certificate of designations relating to each particular series of the preferred
stock, which was or will be filed with the SEC at or before the issuance of the
series of preferred stock.
Terms of the Preferred Stock
Under Viacom's restated certificate of incorporation, Viacom is
authorized to issue up to 25,000,000 shares of preferred stock, par value $0.01
per share. The Board of Directors of Viacom has the authority, without approval
of the stockholders, to issue all of the shares of preferred stock which are
currently authorized in one or more series and to fix the number of shares and
the rights, preferences, privileges, qualifications, restrictions and
limitations of each series. As of September 30, 2000, Viacom had 25,000,000
shares of preferred stock available for issuance.
The applicable prospectus supplement will describe the terms of each
series of preferred stock, including, where applicable, the following:
o the designation, stated value, liquidation preference and number
of shares offered;
o the offering price or prices;
o the dividend rate or rates, or method of calculation, the
dividend periods, the date on which dividends shall be payable
and whether dividends are cumulative or noncumulative and, if
cumulative, the dates from which dividends begin to cumulate;
o any redemption or sinking fund provisions;
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o any conversion or exchange provisions;
o any voting rights;
o whether the preferred stock will be issued in certificated or
book-entry form;
o whether the preferred stock will be listed on a national
securities exchange;
o information with respect to any book-entry procedures; and
o any additional rights, preferences, privileges, limitations and
restrictions of the preferred stock which are not inconsistent
with the provisions of the restated certificate of incorporation.
The preferred stock will be, when issued against payment, fully paid
and nonassessable. Holders will have no preemptive rights to subscribe for any
additional securities which Viacom may issue. Unless otherwise specified in the
applicable prospectus supplement, the shares of each series of preferred stock
will rank equally with all other outstanding series of preferred stock issued by
Viacom as to payment of dividends, other than with respect to cumulation of
dividends, and as to the distribution of assets upon liquidation, dissolution,
or winding up of Viacom. As of September 30, 2000, there were no shares of
Viacom's Preferred Stock outstanding. Each series of preferred stock will rank
senior to the common stock, and any other stock of Viacom that is expressly made
junior to that series of preferred stock.
Unless otherwise specified in the applicable prospectus supplement, The
Bank of New York, will be the transfer agent, dividend disbursing agent and
registrar for the shares of the preferred stock.
Viacom's rights and the rights of holders of Viacom securities,
including the holders of preferred stock, to participate in the distribution of
assets of any subsidiary of Viacom upon its liquidation or recapitalization will
be subject to the prior claims of the subsidiary's creditors and preferred
stockholders, except to the extent Viacom may itself be a creditor with
recognized claims against the subsidiary or a holder of preferred stock of the
subsidiary.
Dividends and Distributions
Holders of shares of the preferred stock will be entitled to receive,
as, if and when declared by the Board of Directors of Viacom or a duly
authorized committee of the Board of Directors, out of funds legally available
for the payment of dividends, cash dividends at the rate set forth in, or
calculated in accordance with the formula set forth in, the prospectus
supplement relating to the preferred stock being offered.
Dividends on the preferred stock may be cumulative or noncumulative as
provided in the applicable prospectus supplement. Dividends on the cumulative
preferred stock will accumulate from the date of original issue and will be
payable quarterly in arrears on the dates specified in the applicable prospectus
supplement. If any date so specified as a dividend payment date is not a
business day, declared dividends on the preferred stock will be paid on the
immediately succeeding business day, without interest. The applicable prospectus
supplement will set forth
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the applicable dividend period with respect to a dividend payment date. If the
Board of Directors of Viacom or a duly authorized committee of the Board of
Directors fails to declare a dividend on any series of noncumulative preferred
stock for any dividend period, Viacom will have no obligation to pay a dividend
for that period, whether or not dividends on that series of noncumulative
preferred stock are declared for any future dividend period. Unless otherwise
specified in the applicable prospectus supplement, dividends on the preferred
stock will be payable to record holders as they appear on the stock books of
Viacom on each record date, not more than 30 nor less than 15 days preceding the
applicable payment date, as shall be fixed by the Board of Directors of Viacom
or a duly authorized committee of the Board of Directors.
No dividends will be declared or paid or set apart for payment on the
preferred stock of any series ranking, as to dividends, equally with or junior
to any other series of preferred stock for any period unless dividends have been
or are contemporaneously declared and paid or declared and a sum sufficient for
the payment of those dividends has been set apart for:
o in the case of cumulative preferred stock, all dividend periods
terminating on or before the date of payment of full cumulative
dividends; or
o in the case of noncumulative preferred stock, the immediately
preceding dividend period.
When dividends are not paid in full upon any series of preferred stock,
and any other preferred stock ranking equally as to dividends with that series
of preferred stock, all dividends declared upon shares of that series of
preferred stock and any other preferred stock ranking equally as to dividends
will be declared pro rata so that the amount of dividends declared per share on
that series of preferred stock and any other preferred stock ranking equally as
to dividends will in all cases bear to each other the same ratio that accrued
dividends per share on the shares of that series of preferred stock and the
other preferred stock bear to each other. In the case of noncumulative preferred
stock, any accrued dividends described in the immediately preceding paragraph
will not include any cumulation in respect of unpaid dividends for prior
dividend periods.
Except as provided in the immediately preceding paragraph, unless full
dividends on all outstanding shares of any series of preferred stock have been
declared and paid, in the case of a series of cumulative preferred stock, for
all past dividend periods, or in the case of noncumulative preferred stock, for
the immediately preceding dividend period, Viacom may not declare dividends or
pay or set aside for payment or other distribution on any of its capital stock
ranking junior to or equally with that series of preferred stock as to dividends
or upon liquidation, other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of, the common
stock of Viacom or other capital stock of Viacom ranking junior to that series
of preferred stock as to dividends and upon liquidation, and other than in
connection with the distribution or trading of any of its capital stock, Viacom
may not redeem, purchase or otherwise acquire any of its capital stock ranking
junior to or equally with that series of preferred stock as to dividends or upon
liquidation, for any consideration or any moneys paid to or made available for a
sinking fund for the redemption of any shares of any of its capital stock,
except by conversion or exchange for capital stock of Viacom ranking junior to
that series of preferred stock as to dividends and upon liquidation.
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Unless otherwise specified in the applicable prospectus supplement, the
amount of dividends payable for any period shorter than a full dividend period
shall be computed on the basis of twelve 30-day months, a 360-day year and the
actual number of days elapsed in any period of less than one month.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding
up of Viacom, the holders of the preferred stock will have preference and
priority over the common stock of Viacom and any other class of stock of
Viacom ranking junior to the preferred stock upon liquidation, dissolution or
winding up, for payments out of or distributions of the assets of Viacom or
proceeds from any liquidation, whether from capital or surplus, of the amount
per share set forth in the applicable prospectus supplement plus all accrued and
unpaid dividends, whether or not earned or declared, to the date of final
distribution to such holders. After any liquidating payment, the holders of
preferred stock will be entitled to no other payments. If, in the case of any
liquidation, dissolution or winding up of Viacom, the assets of Viacom or the
proceeds from any liquidation should be insufficient to make the full
liquidation payment in the amount per share set forth in the applicable
prospectus supplement relating to a series of preferred stock, plus all accrued
and unpaid dividends on that preferred stock, and liquidating payments on any
other preferred stock ranking as to liquidation, dissolution or winding up
equally with that preferred stock, then any assets and proceeds will be
distributed among the holders of the preferred stock and any other preferred
stock ratably in accordance with the respective amounts which would be payable
on those shares of preferred stock and any other preferred stock if all amounts
payable were paid in full. In the case of noncumulative preferred stock, accrued
and unpaid dividends will not include cumulation of unpaid dividends from prior
dividend periods. A consolidation or merger of Viacom with one or more
corporations will not be deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, of Viacom.
Redemption
If specified in the prospectus supplement relating to a series of
preferred stock being offered, Viacom may, at its option, at any time or from
time to time on not less than 30 nor more than 60 days notice, redeem that
series of preferred stock, in whole or in part, at the redemption prices and on
the dates set forth in the applicable prospectus supplement.
If less than all outstanding shares of a series of preferred stock are
to be redeemed, the selection of the shares to be redeemed shall be determined
by lot or pro rata as may be determined to be equitable by the Board of
Directors of Viacom or a duly authorized committee of the Board of Directors.
From and after the redemption date, unless Viacom is in default in providing for
the payment of the redemption price, dividends shall cease to accrue on the
shares of that series of preferred stock called for redemption and all rights of
the holders shall cease, other than the right to receive the redemption price.
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Voting Rights
Unless otherwise described in the applicable prospectus supplement,
holders of the preferred stock will have no voting rights except as set forth
below or as otherwise required by law.
Whenever dividends payable on the preferred stock are in arrears for a
number of dividend periods, whether or not consecutive, which in the aggregate
is equivalent to six calendar quarters, the holders of outstanding shares of the
preferred stock, voting as a class with holders of shares of all other series of
preferred stock ranking equally with the preferred stock either as to dividends
or the distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable, will be
entitled to vote for the election of two additional directors on the terms set
forth below. These voting rights will continue, in the case of any series of
cumulative preferred stock, until all past dividends accumulated on shares of
cumulative preferred stock are paid in full and, in the case of noncumulative
preferred stock, until all dividends on shares of noncumulative preferred stock
are paid in full for at least one calendar year. Upon payment in full of these
dividends, the voting rights will terminate except as expressly provided by law.
These voting rights are subject to re-vesting in the event of each and every
subsequent default in the payment of dividends. Holders of all series of
preferred stock which are granted these voting rights and which rank equally
with the preferred stock will vote as a class, and, unless otherwise specified
in the applicable prospectus supplement, each holder of shares of the preferred
stock will have one vote for each share of stock held and each other series will
have the number of votes, if any, for each share of stock held as may be granted
to them. In the event that the holders of shares of the preferred stock are
entitled to vote as described in this paragraph, the Board of Directors of
Viacom will be increased by two directors, and the holders of the preferred
stock will have the exclusive right as members of that class, as outlined above,
to elect two directors at the next annual meeting of stockholders.
Upon termination of the right of the holders of the preferred stock to
vote for directors as discussed in the preceding paragraph, the term of office
of all directors then in office elected by those holders will terminate
immediately. Whenever the term of office of the directors elected by those
holders ends and the related special voting rights expire, the number of
directors will automatically be decreased to the number of directors as would
otherwise prevail.
So long as any shares of preferred stock remain outstanding, Viacom
shall not, without the affirmative vote or consent of the holders of at least
two-thirds of the shares of the preferred stock outstanding at the time, voting
as a class with all other series of preferred stock ranking equally with the
preferred stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, given in person or by proxy, either in
writing or at a meeting:
o authorize, create or issue, or increase the authorized or issued
amount of, any class or series of stock ranking senior to the
preferred stock with respect to
22
payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of Viacom; or
o amend, alter or repeal, whether by merger, consolidation or
otherwise, the provisions of Viacom's restated certificate of
incorporation or the certificate of designations of the preferred
stock so as to materially and adversely affect any right,
preference, privilege or voting power of the preferred stock or
the holders of the preferred stock;
provided, however, that any increase in the amount of authorized preferred stock
or the creation and issuance, or an increase in the authorized or issued amount,
of other series of preferred stock, or any increase in the amount of authorized
shares of preferred stock, in each case ranking equally with or junior to the
preferred stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding of Viacom up will not be deemed
to materially and adversely affect these rights, preferences, privileges or
voting powers.
The foregoing voting provisions will not apply if all outstanding
shares of preferred stock have been redeemed or sufficient funds have been
deposited in trust to effect such a redemption which is scheduled to be
consummated within three months after the time that such rights would otherwise
be exercisable.
Conversion or Exchange Rights
The prospectus supplement relating to a series of preferred stock that
is convertible or exchangeable will state the terms on which shares of that
series are convertible or exchangeable into common stock, another series of
preferred stock or debt securities.
DESCRIPTION OF COMMON STOCK
The authorized common stock of Viacom consists of 500,000,000 shares of
Viacom Class A common stock and 3,000,000,000 shares of Viacom Class B common
stock. Viacom is not registering with the SEC and is therefore not permitted to
offer or sell any shares of Viacom Class A Common Stock pursuant to the
registration statement of which this prospectus is a part.
Viacom Class A Common Stock
As of September 30, 2000, there were approximately 138,900,000 shares
of Viacom Class A common stock issued and outstanding. Shares of Viacom Class A
Common Stock are not redeemable. Holders of shares of Viacom Class A Common
Stock are entitled to one vote per share.
Viacom Class B Common Stock
Viacom Class B Common Stock has rights, privileges, limitations,
restrictions and qualifications identical to Viacom Class A Common Stock except
that shares of Viacom Class B Common Stock have no voting rights other than
those required by the Delaware General Corporation Law. As of September 30,
2000, there were approximately 1,453,500,000 shares of Viacom Class B Common
Stock issued and outstanding. Shares of Viacom Class B Common Stock are not
redeemable.
23
Voting and Other Rights of Viacom Common Stock
Voting Rights. Under Viacom's restated certificate of incorporation,
except as noted below or otherwise required by the Delaware General Corporation
Law, holders of the outstanding shares of Viacom Class A Common Stock vote
together with the holders of the outstanding shares of all other classes of
capital stock of Viacom entitled to vote, without regard to class. At the
present time, however, there are no outstanding shares of any other class of
capital stock of Viacom entitled to vote. Under Viacom's restated certificate of
incorporation:
o each holder of an outstanding share of Viacom Class A Common
Stock is entitled to cast one vote for each share registered in
the name of the holder and
o the affirmative vote of the holders of a majority of the
outstanding shares of Viacom Class A Common Stock is necessary to
approve any consolidation or merger of Viacom with or into
another corporation pursuant to which shares of Viacom Class A
Common Stock would be converted into or exchanged for any
securities or other consideration.
A holder of an outstanding share of Viacom Class B Common Stock is not
entitled to vote on any question presented to the shareholders of Viacom,
including but not limited to whether to increase or decrease, but not below the
number of shares then outstanding, the number of authorized shares of Viacom B
Common Stock. However, under the Delaware General Corporation Law, a holder of
an outstanding share of Viacom Class B Common Stock is entitled to vote on any
proposed amendment to Viacom's restated certificate of incorporation, if the
amendment will increase or decrease the par value of the shares of Viacom Class
B Common Stock, or alter or change the powers, preferences or special rights of
the shares of Viacom Class B Common Stock so as to affect them adversely.
Subject to the foregoing, any future change in the number of authorized shares
of Viacom Class B Common Stock or any consolidation or merger of Viacom with or
into another corporation pursuant to which shares of Viacom Class B Common Stock
would be converted into or exchanged for any securities or other consideration
could be consummated with the approval of the holders of a majority of the
outstanding shares of Viacom Class A Common Stock and without any action by the
holders of shares of Viacom Class B Common Stock.
Dividends. Subject to the rights and preferences of any outstanding
preferred stock, dividends on Viacom Class A Common Stock and Viacom Class B
Common Stock are payable equally on shares of Class A Common Stock and Class B
Common Stock out of the funds of Viacom legally available therefore when, as and
if declared by the Viacom Board.
Rights in Liquidation. In the event Viacom is liquidated, dissolved or
wound up, whether voluntarily or involuntarily, the net assets of Viacom would
be divided ratably among the holders of the then outstanding shares of Viacom
Class A Common Stock and Viacom Class B Common Stock after payment or provision
for payment of the full preferential amounts to which the holders of any series
of preferred stock of Viacom then issued and outstanding would be entitled.
24
Split, Subdivision or Combination. If Viacom splits, subdivides or
combines the outstanding shares of Viacom Class A Common Stock or Viacom Class B
Common Stock, the outstanding shares of the other class of Viacom common stock
shall be proportionally split, subdivided or combined in the same manner and on
the same basis as the outstanding shares of the other class of Viacom common
stock have been split, subdivided or combined.
Preemptive Rights. Shares of Viacom Class A Common Stock and Viacom
Class B Common Stock do not entitle a holder to any preemptive rights enabling a
holder to subscribe for or receive shares of stock of any class or any other
securities convertible into shares of stock of any class of Viacom. The Viacom
Board possesses the power to issue shares of authorized but unissued Viacom
Class A Common Stock and Viacom Class B Common Stock without further shareholder
action, subject to the requirements of applicable law and stock exchanges,
unless National Amusements, Inc. would no longer hold a majority or other
outstanding shares of voting stock of Viacom as a result of the issuance. The
number of authorized shares of Viacom Class A Common Stock and Viacom Class B
Common Stock could be increased with the approval of the holders of a majority
of the outstanding shares of Viacom Class A Common Stock and without any action
by the holders of shares of Viacom Class B Common Stock.
Trading Market. The outstanding shares of Viacom Class A Common Stock
and Viacom Class B Common Stock are listed for trading on the NYSE. The
registrar and transfer agent for Viacom common stock is The Bank of New York.
Alien Ownership. Viacom's restated certificate of incorporation
provides that Viacom may prohibit the ownership or voting of a percentage of its
equity securities in order to ensure compliance with the requirements of the
Communications Act.
DESCRIPTION OF WARRANTS
Viacom may issue warrants for the purchase of its senior debt
securities, senior subordinated debt securities, or shares of preferred stock.
Warrants may be issued independently or together with any senior debt
securities, senior subordinated debt securities or shares of preferred stock
offered by any prospectus supplement and may be attached to or separate from the
senior debt securities, senior subordinated debt securities or shares of
preferred stock. The warrants are to be issued under warrant agreements to be
entered into between Viacom and The Bank of New York, as warrant agent, or such
other bank or trust company as is named in the prospectus supplement relating to
the particular issue of warrants. The warrant agent will act solely as an agent
of Viacom in connection with the warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants.
General
If warrants are offered, the prospectus supplement will describe the
terms of the warrants, including the following:
o the offering price;
o the currency, currencies or currency units for which warrants may
be purchased;
25
o the designation, aggregate principal amount, currency, currencies
or currency units and terms of the senior debt securities or
senior subordinated debt securities purchasable upon exercise of
the debt warrants and the price at which the senior debt
securities or senior subordinated debt securities may be
purchased upon such exercise;
o the designation, number of shares and terms of the preferred
stock purchasable upon exercise of the preferred stock warrants
and the price at which the shares of preferred stock may be
purchased upon such exercise;
o if applicable, the designation and terms of the senior debt
securities, senior subordinated debt securities or preferred
stock with which the warrants are issued and the number of
warrants issued with each senior debt securities, senior
subordinated debt security or share of preferred stock;
o if applicable, the date on and after which the warrants and the
related senior debt securities, senior subordinated debt
securities or preferred stock will be separately transferable;
o the date on which the right to exercise the warrants will
commence and the date on which the right will expire;
o whether the warrants will be issued in registered or bearer form;
o a discussion of the federal income tax, accounting and other
special considerations, procedures and limitations relating to
the warrants; and
o any other terms of the warrants.
Warrants may be exchanged for new warrants of different denominations,
may, if in registered form, be presented for registration of transfer, and may
be exercised at the corporate trust office of the warrant agent or any other
office indicated in the prospectus supplement. Before the exercise of their
warrants, holders of warrants will not have any of the rights of holders of the
various securities purchasable upon the exercise, including the right to receive
payments of principal of, any premium on, or any interest on, the senior debt
securities or senior subordinated debt securities purchasable upon the exercise
or to enforce the covenants in the senior indenture or the senior subordinated
indenture or to receive payments of dividends, if any, on the preferred stock
purchasable upon their exercise or to exercise any applicable right to vote. If
Viacom maintains the ability to reduce the exercise price of any preferred stock
warrant and the right is triggered, it will comply with federal securities laws,
including Rule 13e-4 under the Exchange Act, to the extent applicable.
Exercise of Warrants
Each warrant will entitle the holder to purchase a principal amount of
senior debt securities, senior subordinated debt securities or a number of
shares of preferred stock at the exercise price as will in each case be set
forth in, or calculable from, the prospectus supplement
26
relating to the warrant. Warrants may be exercised at the times that are set
forth in the prospectus supplement relating to the warrants. After the close of
business on the date on which the warrant expires, or any later date to which
Viacom may extend the expiration date, unexercised warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the prospectus supplement relating thereto, warrants may be exercised
by delivery to the warrant agent of the certificate evidencing the warrants
properly completed and duly executed and of payment as provided in the
prospectus supplement of the amount required to purchase the senior debt
securities, senior subordinated debt securities or shares of preferred stock
purchasable upon the exercise. The exercise price will be the price applicable
on the date of payment in full, as set forth in the prospectus supplement
relating to the warrants. Upon receipt of the payment and the certificate
representing the warrants to be exercised, properly completed and duly executed
at the corporate trust office of the warrant agent or any other office indicated
in the prospectus supplement, Viacom will, as soon as practicable, issue and
deliver the senior debt securities, senior subordinated debt securities or
shares of preferred stock purchasable upon the exercise. If fewer than all of
the warrants represented by a certificate are exercised, a new certificate will
be issued for the remaining amount of warrants.
Additional Provisions
The exercise price payable and the number of shares of preferred stock
purchasable upon the exercise of each stock warrant will be subject to
adjustment in specific events, including the issuance of a stock dividend to
holders of preferred stock, respectively, or a combination, subdivision or
reclassification or preferred stock, respectively. In lieu of adjusting the
number of shares of preferred stock purchasable upon exercise of each stock
warrant, Viacom may elect to adjust the number of preferred stock warrants. No
adjustment in the number of shares purchasable upon exercise of the preferred
stock warrants will be required until cumulative adjustments require an
adjustment of at least 1% thereof. Viacom may, at its option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of
preferred stock warrants, but Viacom will pay the cash value of any fractional
shares otherwise issuable. In case of any consolidation, merger, or sale or
conveyance of the property of Viacom as an entirety or substantially as an
entirety, the holder of each outstanding preferred stock warrant will have the
right upon the exercise to the kind and amount of shares of stock and other
securities and property, including cash, receivable by a holder of the number of
shares of preferred stock into which the stock warrants were exercisable
immediately prior thereto.
27
No Rights as Shareholders
Holders of preferred stock warrants will not be entitled, by virtue of
being the holders, to vote, to consent, to receive dividends, to receive notice
as shareholders with respect to any meeting of shareholders for the election of
Viacom's directors or any other matter, or to exercise any rights whatsoever as
its shareholders.
PLAN OF DISTRIBUTION
We may sell the securities in any of three ways (or in any
combination): (a) through underwriters or dealers; (b) directly to a limited
number of purchasers or to a single purchaser; or (c) through agents. The
prospectus supplement will set forth the terms of the offering of such
securities, including:
o the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of them;
o the offering price of the securities and the proceeds to us and
any discounts, commissions or concessions allowed or reallowed or
paid to dealers; and
o any securities exchanges on which the securities may be listed.
Any offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any securities, the securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The securities may be either offered to the public through
underwriting syndicates represented by managing underwriters, or directly by
underwriters. Generally, the underwriters' obligations to purchase the
securities will be subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the securities if they purchase any of the
securities.
We may sell the securities through agents from time to time. The
prospectus supplement will name any agent involved in the offer or sale of the
securities and any commissions we pay to them. Generally, any agent will be
acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by
certain purchasers to purchase the securities from Viacom at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
The contracts will be subject only to those conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth any
commissions we pay for soliciting these contracts.
Agents and underwriters may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents
28
and underwriters may be customers of, engage in transactions with, or perform
services for us in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the securities will be passed
on for Viacom by Shearman & Sterling, New York, New York.
EXPERTS
Our financial statements incorporated in this prospectus by reference
from our Annual Report on Form 10-K for the year ended December 31, 1999, as
amended on April 28, 2000, have been audited by PricewaterhouseCoopers LLP,
independent accountants, as stated in their report, which is incorporated herein
by reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of CBS as of December 31, 1999
and 1998, and for each of the years in the three-year period ended December 31,
1999, have been audited by KPMG LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
The financial statements of Infinity as of December 31, 1999 and 1998
and for each of the years in the three-year period ended December 31, 1999,
incorporated in this prospectus by reference from Item 8 of Infinity's Annual
Report on Form 10-K for the year ended December 31, 1999, have been audited by
KPMG LLP, independent auditors as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by Viacom
in connection with the sale of the securities being registered hereby. All
amounts are estimates except the registration fee.
Amount to
be Paid
Legal fees and expenses ............................... $ 650,000
Blue Sky fees ......................................... 50,0000
Registration fee....................................... 1,250,000
Printing............................................... 500,000
Trustee fees........................................... 100,000
Rating agency fees..................................... 1,000,000
Accounting fees and expenses........................... 100,000
Miscellaneous.......................................... 100,000
---------------
TOTAL.................................................. $ 3,750,000
===============
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any of its directors or officers who was or is a party,
or is threatened to be made a party, to any third party proceeding by reason of
the fact that such person is or was a director or officer of the corporation,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reason to believe that such person's conduct was unlawful. In
a derivative action, i.e., one by or in the right of a corporation, the
corporation is permitted to indemnify directors and officers against expenses
(including attorneys' fees) actually and reasonably incurred by them in
connection with the defense or settlement of an action or suit if they acted in
good faith and in a manner that they reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification shall
be made if such person shall have been adjudged liable to the corporation,
unless and only to the extent that the court in which the action or suit was
brought shall determine upon application that the defendant directors or
officers are fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Expenses, including attorneys' fees, incurred by any such person in
defending any such action, suit or proceeding may be paid or reimbursed by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt by it of an undertaking of such person to repay such
expenses if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation.
II-1
Delaware law does not permit a corporation to indemnify persons against
judgments in actions brought by or in the right of the corporation unless the
Delaware Court of Chancery approves the indemnification.
Viacom's restated certificate of incorporation provides that each
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative, because that person is or was a Viacom director
or officer or is or was serving at Viacom's request as a director or officer of
another entity, shall be indemnified and held harmless by Viacom to the fullest
extent permitted by Delaware law. This right to indemnification also includes
the right to be paid by Viacom the expenses incurred in connection with that
proceeding in advance of its final disposition to the fullest extent authorized
by Delaware law. This right to indemnification is a contract right. Viacom's
restated certificate of incorporation authorizes its Board of Directors to
indemnify any of Viacom's employees or agents to the extent approved by the
Board of Directors and authorized under Delaware law.
Viacom intends to purchase and maintain insurance on behalf of any
person who is or was one of its directors, officers, employees or agents, or is
or was serving at the request of Viacom as a director, officer, employee or
agent of another entity against any liability asserted against him or her and
incurred by him or her in that capacity, or arising out of his or her status as
such, whether or not Viacom would have the power or the obligation to indemnify
him or her against that liability under the provisions of the restated
certificate of incorporation of Viacom.
Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in
II-2
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrants hereby understand that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrants pursuant to the
foregoing provisions, or otherwise, the registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrants will, unless in the opinion of
their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 26th day of December, 2000.
VIACOM INC.
By: /s/ SUMNER REDSTONE
--------------------------------
Name: Sumner M. Redstone
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board of Directors, December 26, 2000
/s/ SUMNER M. REDSTONE Chief Executive Officer and Director
- -------------------------- (Principal Executive Officer)
Sumner M. Redstone
/s/ FREDRIC G. REYNOLDS
- -------------------------- Executive Vice President and December 26, 2000
Fredric G. Reynolds Chief Financial Officer (Principal
Financial Officer)
/s/ SUSAN C. GORDON
- -------------------------- Vice President, Controller and December 26, 2000
Susan C. Gordon Chief Accounting Officer (Principal
Accounting Officer)
*
- -------------------------- Director
George S. Abrams
*
- -------------------------- Director
David R. Andelman
*
- -------------------------- Director
George H. Conrades
*
- -------------------------- Director
Philippe P. Dauman
II-4
Signature Title Date
--------- ----- ----
*
- -------------------------- Director
William H. Gray III
*
- -------------------------- Director
Mel Karmazin
*
- -------------------------- Director
Jan Leschly
*
- -------------------------- Director
David T. McLaughlin
*
- -------------------------- Director
Leslie Moonves
*
- -------------------------- Director
Brent D. Redstone
*
- -------------------------- Director
Shari Redstone
*
- -------------------------- Director
Frederic V. Salerno
*
- -------------------------- Director
William Schwartz
*
- -------------------------- Director
Ivan Seidenberg
*
- -------------------------- Director
Patty Stonesifer
*
- -------------------------- Director
Robert D. Walter
*By: /s/ MICHAEL D. FRICKLAS
-------------------------- December 26, 2000
Michael D. Fricklas,
Attorney-in-Fact
For the Directors
II-5
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
1.1 Form of Underwriting Agreement.*
4.1 Form of Senior Indenture among Viacom Inc. and The Bank of New
York, as senior trustee.
4.2 Form of Senior Subordinated Indenture among Viacom Inc. and The
Bank of New York, as trustee.
4.3 Form of Debt Warrant Agreement.
4.4 Form of Preferred Stock Warrant Agreement Provisions.
5.1 Opinion of Shearman & Sterling regarding the senior debt
securities, the senior subordinated debt securities, the
preferred stock and the warrants.
12.1 Statement regarding computation of Consolidated Ratio of Earnings
to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP.
23.4 Consent of Shearman & Sterling (included in Exhibit 5.1).
24.1 Powers of Attorney.
25.1 Statement of Eligibility on Form T-1 of Bank of New York,
as senior trustee.
25.2 Statement of Eligibility on Form T-1 of Bank of New York,
as senior subordinated trustee.
- -----------------------------
* To be filed by amendment.
II-6
Exhibit 4.1
- --------------------------------------------------------------------------------
VIACOM INC.,
Issuer
and
THE BANK OF NEW YORK,
Trustee
------------------------------
Indenture
Dated as of [ ]
------------------------------
Providing for the Issuance
of
Senior Debt Securities
VIACOM INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ].
Trust Indenture Act Indenture
Section Section
ss. 310 (a)(1) 607(a)
(a)(2) 607(a)
(b) 607(b), 609
ss. 312 (c) 701
ss. 314 (a) 704
(a)(4) 1008(a)
(c)(1) 102
(c)(2) 102
(e) 102
ss. 315 (b) 601
ss. 316 (a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss. 317 (a)(1) 503
(a)(2) 504
ss. 318 (a) 111
(c) 111
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.......................................................1
SECTION 102. Compliance Certificates and Opinions.............................12
SECTION 103. Form of Documents Delivered to Trustee...........................13
SECTION 104. Acts of Holders..................................................13
SECTION 105. Notices, etc., to Trustee and Company............................15
SECTION 106. Notice to Holders; Waiver........................................15
SECTION 107. Effect of Headings and Table of Contents.........................16
SECTION 108. Successors and Assigns...........................................16
SECTION 109. Separability Clause..............................................16
SECTION 110. Benefits of Indenture............................................17
SECTION 111. Governing Law....................................................17
SECTION 112. Legal Holidays...................................................17
SECTION 113. Submission to Jurisdiction: Appointment of Agent for Service.....17
ARTICLE TWO SECURITIES FORMS
SECTION 201. Forms of Securities..............................................17
SECTION 202. Form of Trustee's Certificate of Authentication..................18
SECTION 203. Securities Issuable in Global Form...............................18
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.............................19
SECTION 302. Denominations....................................................23
SECTION 303. Execution, Authentication, Delivery and Dating...................23
SECTION 304. Temporary Securities.............................................26
SECTION 305. Registration, Registration of Transfer and Exchange..............28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.....31
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest
Reset............................................................32
SECTION 308. Optional Extension of Maturity...................................35
SECTION 309. Persons Deemed Owners............................................36
SECTION 310. Cancellation.....................................................37
SECTION 311. Computation of Interest..........................................37
SECTION 312. Currency and Manner of Payments in Respect of Securities.........37
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.....41
SECTION 314. CUSIP Numbers....................................................41
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..........................41
SECTION 402. Application of Trust Funds.......................................43
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default................................................43
SECTION 502. Acceleration of Maturity; Rescission and Annulment...............44
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..45
SECTION 504. Trustee May File Proofs of Claim.................................46
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons..........................................................47
SECTION 506. Application of Money Collected...................................47
SECTION 507. Limitation on Suits..............................................47
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.....................................................48
SECTION 509. Restoration of Rights and Remedies...............................48
SECTION 510. Rights and Remedies Cumulative...................................48
SECTION 511. Delay or Omission Not Waiver.....................................49
SECTION 512. Control by Holders of Securities.................................49
SECTION 513. Waiver of Past Defaults..........................................49
SECTION 514. Waiver of Stay or Extension Laws.................................49
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults...............................................50
SECTION 602. Certain Rights of Trustee........................................50
SECTION 603. Not Responsible for Recitals or Issuance of Securities...........51
SECTION 604. May Hold Securities..............................................51
SECTION 605. Money Held in Trust..............................................52
SECTION 606. Compensation and Reimbursement and Indemnification of Trustee....52
SECTION 607. Corporate Trustee Required; Eligibility..........................52
SECTION 608. Disqualification; Conflicting Interests..........................53
SECTION 609. Resignation and Removal; Appointment of Successor................53
SECTION 610. Acceptance of Appointment by Successor...........................54
SECTION 611. Merger, Conversion, Consolidation or Succession to Business......55
SECTION 612. Appointment of Authenticating Agent..............................56
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.....................57
SECTION 702. Preservation of Information; Communications to Holders...........58
SECTION 703. Reports by Trustee...............................................58
SECTION 704. Reports by Company...............................................58
SECTION 705. Calculation of Original Issue Discount...........................59
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms..............59
SECTION 802. Successor Person Substituted.....................................59
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...............60
ii
SECTION 902. Supplemental Indentures with Consent of Holders..................61
SECTION 903. Execution of Supplemental Indentures.............................62
SECTION 904. Effect of Supplemental Indentures................................63
SECTION 905. Conformity with Trust Indenture Act..............................63
SECTION 906. Reference in Securities to Supplemental Indentures...............63
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.............63
SECTION 1002. Maintenance of Office or Agency.................................63
SECTION 1003. Money for Security Payments to Be Held in Trust.................65
SECTION 1004. Corporate Existence.............................................66
SECTION 1005. Maintenance of Principal Properties.............................66
SECTION 1006. Payment of Taxes and Other Claims...............................67
SECTION 1007. Additional Amounts..............................................67
SECTION 1008. Compliance Certificate..........................................68
SECTION 1009. Waiver of Certain Covenants.....................................68
SECTION 1010. Limitations on Liens............................................68
SECTION 1011. Limitations on Sale and Leaseback Transactions..................69
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................................69
SECTION 1102. Election to Redeem; Notice to Trustee...........................69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...............70
SECTION 1104. Notice of Redemption............................................70
SECTION 1105. Deposit of Redemption Price.....................................71
SECTION 1106. Securities Payable on Redemption Date...........................72
SECTION 1107. Securities Redeemed in Part.....................................72
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article........................................73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...........73
SECTION 1203. Redemption of Securities for Sinking Fund.......................74
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article........................................74
SECTION 1302. Repayment of Securities.........................................74
SECTION 1303. Exercise of Option..............................................75
SECTION 1304. When Securities Presented for Repayment Become Due and Payable..75
SECTION 1305. Securities Repaid in Part.......................................76
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance....76
SECTION 1402. Defeasance and Discharge........................................76
iii
SECTION 1403. Covenant Defeasance.............................................77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.................77
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..................................79
SECTION 1406. Reinstatement...................................................80
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.......................80
SECTION 1502. Call, Notice and Place of Meetings..............................80
SECTION 1503. Persons Entitled to Vote at Meetings............................81
SECTION 1504. Quorum; Action..................................................81
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.....................................................82
SECTION 1506. Counting Votes and Recording Action of Meetings.................83
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
iv
INDENTURE, dated as of , between VIACOM INC., a Delaware
corporation (the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036 and THE BANK OF NEW YORK, a New York banking corporation,
as Trustee (the "Trustee"), having its Corporate Trust Office at 101 Barclay
Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
senior debt securities (the "Securities") evidencing its unsecured and
unsubordinated indebtedness, which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company), and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more
series, unlimited as to principal amount, to bear such rates of interest, to
mature at such times and to have such other provisions as provided in this
Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, (the "TIA") that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular and, pursuant to Section 301, any such item may, with respect
to any particular series of Securities, be amended, or modified or
specified as being inapplicable;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) except as otherwise herein expressly provided, all accounting
terms not otherwise defined herein have the meanings assigned to them
in accordance with
generally accepted accounting principles in the United States of
America, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America
from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1007.
"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.
"Agent" means any Security Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Attributable Debt" means, with regard to a Sale and Leaseback
Transaction with respect to any Principal Property, the lesser of: (a) the fair
market value of such property (as determined in good faith by the Board of
Directors of the Company); or (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and excluding any
unexercised renewal or other extension options exercisable by the lessee, and
excluding amounts on account of maintenance and repairs, services, taxes and
similar charges and contingent rents), discounted at the rate of interest set
forth or implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum borne by the
Securities of the applicable series then Outstanding) compounded semi-annually.
In the case of any lease which 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 pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
2
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made on the same or on different days of the
week, in the same or in different newspapers, in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"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, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other particular location are authorized or obligated by law or executive order
to close.
"Capitalized Lease" means any obligation of a Person to pay
rent or other amounts incurred with respect to real property or equipment
acquired or leased by such Person and used in its business that is required to
be recorded as a capital lease in accordance with generally accepted accounting
principles consistently applied as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture 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.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by one Officer of the Company and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
3
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"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 of this Indenture is located at 101
Barclay Street, New York, New York 10286.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, as applicable, either the U.S. Depositary
or the Common Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
4
"Euro Security" means any Bearer Security, any Security
initially represented by a Security in temporary global form exchangeable for
Bearer Securities and any Security in permanent global form exchangeable for
Bearer Securities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any Currency, including, without
limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association
of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, 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 or such government which issued the Foreign
Currency in which the Securities of such series are payable, the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name the Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, means the bearer thereof.
5
"Indebtedness" of any Person means, without duplication, (i)
any obligation of such Person for money borrowed, (ii) any obligation of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) any reimbursement obligation of such Person in respect of letters of
credit or other similar instruments which support financial obligations which
would otherwise become Indebtedness, (iv) any obligation of such Person under
Capitalized Leases (other than in respect of (x) telecommunications equipment
including, without limitation, satellite transponders, and (y) theme park
equipment and attractions) and (v) any obligation of any third party to the
extent secured by a Lien on the assets of such Person; provided, however, that
"Indebtedness" of such Person shall not include any obligation of such Person
(i) to any Subsidiary of such Person or to any Person with respect to which such
Person is a Subsidiary or (ii) specifically with respect to the production,
distribution or acquisition of motion pictures or other programming rights,
talent or publishing rights.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, 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
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"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, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Make-Whole Amount" means, with respect to a series of
Securities, the excess, if any, of (i) the aggregate present value as of the
Redemption Date of principal being redeemed and the amount of interest
(exclusive of interest accrued to the Redemption Date) that would have been
payable if redemption had not been made, determined by discounting, on a
semiannual basis, the remaining principal and interest payment for such series
of Securities at the Reinvestment Rate (determined on the third Business Day
preceding the date notice of redemption shall have been given) from the dates on
which the principal and interest would have been payable with respect to such
series of Securities if the redemption had not been made, to the
6
applicable Redemption Date, over (ii) the aggregate principal amount of the
applicable series of Securities being redeemed.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"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, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion, or otherwise.
"non-United States Person" means a Person who is not a United
States Person.
"Notice of Default" shall have the meaning provided in Section
501.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company.
"Officer's Certificate" means a certificate signed by any
Officer of the Company in his or her capacity as such Officer and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel for
the Company.
7
"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 502.
"Outstanding", when used with respect to Securities or any
series of any Securities, means, as of the date of determination, all Securities
or all Securities of such series, as the case may be, theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder 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 and any coupons
appertaining thereto, 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, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 301 hereof, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security and (iii) 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 making
8
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person who has an account with a
Depositary.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities or coupons on behalf of the
Company.
"Periodic Offering" means an offering of a Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the United States) where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company or
any Restricted Subsidiary and located in the United States, the aggregate book
value of which on the date of determination exceeds $1.0 billion, other than any
such real property and related fixtures or improvements, which, as determined in
good faith by the Board of Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
9
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reinvestment Rate" means % for the series of Securities
designated as % Notes/Debentures due and % for the series of Securities
designated as % Notes/Debentures due , in each case plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent Federal
Reserve Statistical Release H.15 (or any comparable successor publication) under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity, as of the
Maturity of the principal of the series of Securities being redeemed or paid. If
no maturity exactly corresponds to the Maturity of such series of Securities,
yields for the two published maturities most closely corresponding to the
Maturity of such series of Securities would be so calculated and the
Reinvestment Rate would be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month. The most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount will be
used for purposes of calculating the Reinvestment Rate.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date", when used with respect to any Security to be
repaid at the option of the Holder, means the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject
"Restricted Subsidiary" means a corporation all of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of its Subsidiaries, or by the Company and one or more
of its Subsidiaries, which is incorporated under the laws of a State of the
United States, and which owns a Principal Property.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Person; provided, however, that "Sale and Leaseback Transaction"
shall not include such arrangements that were
10
existing on the date set forth in a prospectus supplement, or at the time any
Person owning a Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or consolidation).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"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 or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority
of the outstanding Voting Stock of which is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation), including, without limitation, a partnership or joint venture,
in which such Person, one or more Subsidiaries thereof, or such Person and one
or more Subsidiaries thereof, directly or indirectly, at the date of the
determination thereof, has at least majority ownership interest entitled to vote
in the election of directors, managers or trustees thereof (or other Persons
performing similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
11
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, any individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more Untied States Persons have the authority to control all
substantial decisions of the trust. Notwithstanding the preceding sentence, to
the extent provided in the Treasury regulations, certain trusts in existence on
August 20, 1996, and treated as United States Persons prior to such date that
elect to continue to be treated as United States Persons, will also be United
States Persons.
"U.S. 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
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act, and if any time there is more than one such Person,
"U.S. Depositary" as used with respect to the Securities of any series shall
mean the U.S. Depositary with respect to the Securities of such series.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture (other than in connection with the delivery of any Security offered in
a Periodic Offering to the Trustee for authentication pursuant to Section 303),
the Company shall furnish to the Trustee an Officer's 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.
12
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
or she has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations 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 as 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
as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, 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. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of
13
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
(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 or her 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 that the Trustee deems reasonably
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
reasonably sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in 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.
14
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. 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 eleven months after the
record date.
(f) 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, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. 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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished,
filed or mailed, first class postage prepaid, in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture, to the attention of its Secretary, or at any other
address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Except as otherwise
expressly provided herein or otherwise specified with respect to any Securities
pursuant to Section 301, where this Indenture provides for notice of any event
to Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each such 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. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered
15
Securities by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder. In any case where
notice to Holders of Registered Securities 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
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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 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 107. 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 108. 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 109. Separability Clause. In case any provision in
this Indenture or in any Security or coupon 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.
16
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts of laws. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment 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 any
Security or coupon 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 principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Submission to Jurisdiction. The Company hereby
irrevocably submits to the non-exclusive jurisdiction of any New York state or
federal court sitting in The City of New York is any action or proceeding
arising out of or relating to the Indenture or the Securities of any series, and
the Company hereby irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in such New York state or federal
court. The Company hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series, the Bearer Securities, if any, of each series and
related coupons, the temporary global Securities of each series, if any, and
the permanent global Securities of each series, if any, shall be in
substantially the forms as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent
17
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
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 Officer
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee or the Security Registrar 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 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee or the
Security Registrar 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 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
18
The provisions of the last sentence of Section 303 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 or
the Security Registrar the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 201 and Section 307,
unless otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer's Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906, 1107 or 1305) and except for any Securities
which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
19
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of
the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which any such
interest shall accrue or the method by which any such date or
dates shall be determined, the Interest Payment Dates on which
any such interest will be payable and the Regular Record Date, if
any, for any interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or dates
shall be determined, and the basis upon which such interest shall
be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable (which in the case of
Euro Securities shall be outside the United States), any
Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be
surrendered for exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable, and, if different than the location
specified in Section 105, the place or places where notices or
demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency or Currencies in which, and other terms
and conditions upon which Securities, of the series may be
redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which,
the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which, Securities of
the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if
other than denominations of $5,000, the denomination or
denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502, upon redemption of the Securities of the
series which are redeemable before their Stated Maturity, upon
surrender for repayment
20
at the option of the Holder, or which the Trustee shall be
entitled to claim pursuant to Section 504 or the method by which
such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in
which payment of the principal of (or premium, if any) or
interest, if any, on the Securities of the series shall be made
or in which the Securities of the series shall be denominated and
the particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section
312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities,
equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in
one or more Currencies, other than that in which such Securities
are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency
or Currencies in which such Securities are denominated or stated
to be payable and the Currency or Currencies in which such
Securities are to be paid, in each case in accordance with, in
addition to or in lieu of any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section
1009) of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale
or delivery of Bearer Securities and the terms upon which Bearer
Securities of the series may be exchanged for Registered
Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the
series are to be issuable initially in temporary global form with
or without coupons and whether any Securities of the series are
to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of
the series
21
may be exchanged for Registered Securities of the series, and the
circumstances under which and the place or places where such
exchanges may be made and if Securities of the series are to be
issuable as a global Security, the identity of the depository for
such series;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, the
extent to which, or the manner in which, any interest payable on
a temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 304; and the
extent to which, or the manner in which, any interest payable on
a permanent global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 307;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates,
documents or conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1007 on the Securities of the series to any Holder who is
a non-United States Person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such Securities
will be so convertible or exchangeable; and
22
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the
requirements of the Trust Indenture Act) at which the Securities
will be issued and any modification of the definitions set forth
herein.
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
(subject to Section 303) and set forth in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need 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 one or more Board Resolutions, a copy of
an appropriate record of such action(s) 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 Officer's Certificate setting forth the terms of the
Securities of such series.
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture referred to above may provide general
terms or parameter for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated by
the third paragraph of Section 303.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer or its President or one of
its Executive Vice Presidents or Vice Presidents or by its Treasurer or one of
its Assistant Treasurers, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons 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
23
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in the case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series; provided
further, however, that, in connection with its original issuance, no Euro
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Euro Security (other than a
Security in temporary global form) may be delivered in connection with its
original issuance only if the Person entitled to physical delivery of such Euro
Security (which, in case of a Euro Security to be received in exchange for all
or a portion of a Security in temporary global form, shall be the account holder
with Euroclear or Clearstream to whose account all or such portion of such
Security in temporary global form has been credited) shall have furnished a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date. If any Security shall be represented by a
permanent global Security, then, for purposes of this Section and Section 304,
the notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security shall
be deemed to be physical delivery in connection with its original issuance of
such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as interest
rate, maturity date, date of issuance and date from which interest shall accrue.
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 TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture;
(b) that the terms of such Securities and any coupons have
been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject, in the case of Securities
24
of a series offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and
any coupons.
Notwithstanding the provisions of Section 301 and the two
preceding paragraphs, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officer's Certificate
otherwise required pursuant to Section 301 or the Company Order, Opinion of
Counsel or Officer's Certificate otherwise required pursuant to such preceding
paragraphs at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate and deliver such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Section 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, 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
25
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 310 together with a written statement (which need not comply
with Section 102 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 never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities or coupons may determine, as
conclusively evidenced by their execution of such Securities or coupons. In the
case of Securities of any series issuable as Bearer Securities, such temporary
Securities shall be delivered only in compliance with the conditions set forth
in Section 303 and may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), 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
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further,
however, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
26
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, or to
the Security Registrar, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Security held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to Section 301;
and provided further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or Clearstream. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest
27
Payment Date upon delivery by Euroclear and Clearstream to the Trustee or the
applicable Paying Agent of a certificate or certificates in the form set forth
in Exhibit A-2 to this Indenture (or in such other forms as may be established
pursuant to Section 301), for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or Clearstream, as the case may
be, a certificate dated no earlier than 15 days prior to the Interest Payment
Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1
to this Indenture (or in such other forms as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the date
of certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary global Security will
be made unless and until such interest in such temporary global Security shall
have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and Clearstream and not paid as herein provided shall be
returned to the Trustee or the applicable Paying Agent immediately prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company.
SECTION 305. 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 of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided,
and for facilitating exchanges of temporary global Securities for permanent
global Securities or definitive Securities, or both, or of permanent global
Securities for definitive Securities, or both, as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
28
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons (except as provided below) and with all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this
29
paragraph. If any beneficial owner of an interest in a permanent global Security
is entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the Trustee or
the Security Registrar definitive Securities of that series in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, in accordance
with instructions given by the Company to the Trustee or the Security Registrar
and the Common Depositary or the U.S. Depositary, as the case may be (which
instructions shall be in writing but need not comply with Section 102 or be
accompanied by an Opinion of Counsel), such permanent global Security shall be
surrendered from time to time by the Common Depositary or the U.S. Depositary,
as the case may be, or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, or to the Security Registrar to be exchanged, in whole or from
time to time in part, for definitive Securities of the same series without
charge and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, in which case the definitive Securities
exchanged for the permanent global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by Section
301, shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided
further that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any location
in the United States. Promptly following any such exchange in part, such
permanent global Security shall be returned by the Trustee or the Security
Registrar to the Common Depositary or the U.S. Depositary, as the case may be,
or such other depositary referred to above in accordance with the Company's
instructions. If a Registered Security is issued in exchange for any portion of
a permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same
30
benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar or any transfer agent, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company 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 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, 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 or coupon has
been acquired by a bona fide purchaser, the Company shall, subject to the
following paragraph, execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed,
31
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon, as the case may be; provided, however,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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 with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, 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 or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset. (a) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, on any Registered Security that 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 at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the
32
Security Register or (ii) transfer to an account maintained by the payee
located in the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of any U.S. Depositary, and/or to
each of Euroclear and Clearstream with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for the purpose
of permitting such U.S. Depositary and/or each of Euroclear and Clearstream to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that 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 registered Holder thereof
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 Registered 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 Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the
Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided
in Sections 312(b), 312(d) and 312(e)) 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 on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
33
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 Registered 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
the Registered 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). In case a Bearer Security
of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or
agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered 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, such manner of payment shall be deemed
practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or
34
dates on which or the period or periods during which and the price or prices at
which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Optional Extension of Maturity. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall
35
be extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Security will have the same terms as prior
to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate, if any, provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment
of a Registered 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 Registered Security is registered as the absolute owner of such Registered
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
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.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon 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, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
temporary or permanent Security, nothing herein shall prevent the Company, the
Trustee, or any agent of the
36
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Common Depositary or a U.S. Depositary, as
the case may be, or impair, as between a Common Depositary or a U.S. Depositary
and Holders of beneficial interests in such temporary or permanent global
Security, the operation of customary practices governing the exercise of the
rights of the Common Depositary or the U.S. Depositary as Holder of such
temporary or permanent global Security.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
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 any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close
37
of business on the Election Date immediately preceding the applicable payment
date. If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
for such series of Registered Securities (but any such change must be made not
later than the close of business on the Election Date immediately preceding the
next payment date to be effective for the payment to be made on such payment
date and no such change of election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to which the Company has deposited funds
pursuant to Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to elect
repayment has been sent by such Holder or such transferee). Any Holder of any
such Registered Security who shall not have delivered any such election to the
Trustee of such series of Registered Securities not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in Section 312(a).
The Trustee for each such series of Registered Securities shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid
38
by the Company to the Trustee of each such series of Securities and by such
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and
such single currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies,
having an aggregate Dollar
39
Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit,
including, but not limited to, the ECU, a Conversion Event (other than
any event referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency unit
and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars
at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
An "Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior
to Maturity, as the case may be, or such other prior date for any
series of Registered Securities as specified pursuant to clause 13 of
Section 301 by which the written election referred to in Section
312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
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SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency.
SECTION 314. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use),
and, if so, the Trustee shall indicate the respective "CUSIP", "CINS" or "ISIN"
numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and
41
any right to receive Additional Amounts, as provided in Section 1007), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, 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
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, solely for the benefit of the
Holders, an amount in the Currency in which the Securities of such
series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has irrevocably paid or caused to be
irrevocably paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating
42
to the satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 612 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
any termination of this Indenture.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons 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, if any, for whose payment such money has been deposited with
or received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or is specifically deleted or modified in or
pursuant to the supplemental indenture or a Board Resolution establishing such
series of Securities or is in the form of Security for such series:
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable, at its
Maturity, upon acceleration, redemption or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series) and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such
43
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(5) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due or the taking of corporate action by the Company in
furtherance of any such action; or
(6) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section 501(4)
or (5)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may, and the Trustee at the request of such Holders shall,
declare immediately due and payable, by a notice in writing to the Company (and
to the Trustee if given by Holders) the unpaid principal (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) of (and
premium, if any) and accrued interest in respect of each Security then
Outstanding in that series (the "Default Amount"). Upon any such declaration,
the Default Amount shall become immediately due and payable on all Outstanding
Securities of that series. Notwithstanding any other provision of this Section
502, if an Event of Default specified in Section 501(4) or (5) occurs then, the
Default Amount on the Securities then Outstanding 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.
44
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Trustee may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that series
and any related coupons,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than by
such declaration of acceleration, and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon 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 its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee (such
demand and payment in the case of Euro Securities to occur only outside of the
United States), for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons of
that series for principal (and premium, if any) and interest, if any, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest, if any, at the rate or rates borne by or provided for
in such Securities, and, in addition thereto,
45
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, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon Securities of
such series 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 Securities of such series, 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 and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of 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 of a
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series 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 any overdue principal, premium, if
any, 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 (or in the case of Original Issue Discount Securities, such
portion of the principal as may be provided in the terms thereof)(and
premium, if any) and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
(which distribution, in the case of Euro Securities, shall occur only
outside the United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, their agents and counsel, and any other amounts due the Trustee under
Section 606.
46
Subject to Article Eight and Section 902 and unless otherwise
provided as contemplated by Section 301, nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and 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 and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be (such presentation, in the case of Euro Securities or coupons,
to occur only outside the United States), 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 606;
SECOND: To the payment (such payment, in the case of Euro
Securities, to occur only outside the United States) of the amounts
then due and unpaid upon the Securities and coupons for principal (and
premium, if any) and interest, if any, 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 aggregate amounts
due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon 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;
47
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an
indemnity, reasonably satisfactory to the Trustee, against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such Security
or payment of such coupon on the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date or, in
the case of repayment at the option of the Holders on the Repayment 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 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon 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 the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons 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
48
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon 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 of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than 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) the Trustee may refuse to follow any direction which, in
the Opinion of Counsel to the Trustee, is unduly prejudicial to other
Holders of Securities of such series not consenting or would subject
the Trustee to personal liability.
SECTION 513. Waiver of Past Defaults. Subject to Section 502,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to Securities of such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related
coupons, or
(2) in respect of a provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the
49
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series, or in the payment
of any sinking fund installment with respect to the Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(3) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(2) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon a Board Resolution,
an Opinion of Counsel or an Officer's Certificate.
(4) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
50
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee in good faith
shall determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during
normal business hours to examine the books, records and premises of the
Company, personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
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 any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons 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 or coupons, 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 in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. 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 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it
51
would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement and
Indemnification of Trustee. The Company agrees:
(1) To pay to the Trustee or any predecessor Trustee from time
to time such reasonable compensation for all services rendered by it
hereunder as has been agreed upon in writing (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 each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or such predecessor 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.
(3) To indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia 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. 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.
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SECTION 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 609. 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 610.
(b) Subject to Section 609(a) hereof, 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.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by an Officer's Certificate
delivered to the Trustee, provided that contemporaneously therewith (x) the
Company immediately appoints a successor Trustee with respect to the Securities
of such series meeting the requirements of Section 607 hereof and (y) the terms
of Section 610 hereof are complied with in respect of such appointment (the
Trustee being removed hereby agreeing to execute the instrument contemplated by
Section 610(b) hereof, if applicable, under such circumstances) and provided
further that no Default with respect to such Securities shall have occurred and
then be continuing at such time, or (ii) Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security 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 607
and shall fail to resign after written request therefor by the Company
or by any 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 or pursuant to an Officer's
Certificate may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security 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.
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(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) 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
or pursuant to a Board Resolution or Officer's Certificate, 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). 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, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security 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 Securities of such series.
(g) 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
in the manner provided for notices to the Holders of Securities in Section 106.
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 610. 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 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 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, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm
54
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.
Whenever there is a successor Trustee with respect to one or more (but less than
all) series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definition of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. 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 of 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 or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to
55
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 612. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents (which may be an Affiliate or
Affiliates of the Company) with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. 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, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State 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 authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid 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. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall promptly
give written notice of such appointment to all
56
Holders of Securities of the series with respect to which such Authenticating
Agent will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment 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 or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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 Officer
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be an
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities, provided that the terms
and conditions of such appointment are acceptable to the Trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any
agent of any of them shall be held accountable
57
by reason of the disclosure of any information as to the names and addresses of
the Holders of Securities in accordance with TIA Section 312, 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 TIA Section 312(b).
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 which meets the requirements of TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 704. Reports by Company. The Company will:
(a) 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;
(b) 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.
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The Trustee shall transmit by mail to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (a) and (b) of this Section.
SECTION 705. Calculation of Original Issue Discount. Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain
Terms. The Company may not consolidate or merge with or into another
corporation, or sell or convey all or substantially all of its property and
assets to another Person unless: (i) immediately after such consolidation,
merger, sale or conveyance no Event of Default or Default shall have occurred
and be continuing; (ii) the surviving Person in such merger or consolidation (if
other than the Company) or Person to whom such property and assets are sold or
conveyed (if other than the Company) is a corporation organized under the laws
of the United States or any state thereof, and such Person (if other than the
Company) through a supplemental indenture assumes payment of the principal of
(premium, if any, on) and interest on, the Outstanding Securities of the
applicable series and the performance and observance of all the covenants and
conditions of the Indenture with respect to the Company; (iii) the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale or conveyance and
such supplemental indenture comply with the applicable provisions of the
Indenture and that all conditions precedent therein provided for relating to
such consolidation, merger, sale or conveyance have been complied with. The
Company may consolidate or merge with or into, or sell or convey all or
substantially all of its property and assets to any Subsidiary. For purposes of
this Section, "sell or convey all or substantially all of its property and
assets" shall mean property and assets contributing in the aggregate at least
80% of the Company's total consolidated revenues as reported in the Company's
last available periodic financial report (quarterly or annual, as the case may
be) filed with the Commission.
SECTION 802. Successor Person Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any sale or conveyance of all or substantially all of the
property and assets of the Company to any Person in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale or conveyance is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and in the event of any such sale or conveyance, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in Section 801) shall be
discharged of all obligations and covenants under this Indenture and the
Securities and any coupons appertaining thereto, and may be dissolved or
liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Unless otherwise specified in Section 902, without the consent of any
Holders of Securities or coupons, the Company, when authorized by or pursuant to
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 reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained in accordance with
Article Eight hereof; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(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 for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; 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
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(6) to secure the Securities pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into
or exchangeable for any securities of any Person (including the
Company); 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; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture which affect such series of Securities
or of modifying in any manner the rights of the Holders of Securities of such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each such series affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or the terms of any sinking fund with respect to any
Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or repayment thereof at the option of the Holder, or change any
obligation of the Company to pay Additional Amounts as contemplated by
Section 1007 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or upon the redemption thereof or the amount thereof provable in
bankruptcy pursuant to Section 504, or
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adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the Currency 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 or, in the case of repayment
at the option of the Holder, on or after the Repayment Date), or modify
the provisions of this Indenture with respect to the mandatory
redemption of Securities or repayment of the Securities at the option
of the Holder in a manner adverse to any Holder of any Securities or
any coupons appertaining thereto, or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
301 herein, or
(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 with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso,
in accordance with the requirements of Sections 610(b) and 901(7).
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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article
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or the modification thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. 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 (which
delivery, in the case of Euro Securities, shall occur only outside the United
States) by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay, in the Currency or Currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series), the principal of (and premium, if any, on) and
any interest on the Securities of that series in accordance with the terms of
such Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the respective coupons for such
interest installments.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
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Securities of that series and this Indenture may be served, which agency
initially shall be The Bank of New York, 101 Barclay Street, New York, New York
10286, Attention: . If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007); provided, however, that, if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and give prompt
notice to the Holders as provided in Section 106 of the location, and any change
in the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agent to receive all
such respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, if any, or interest
on Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to any account maintained with a financial institution located in the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of (and premium, if
any, on) and any interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, or the office or agency of the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, if any, interest or Additional Amounts, as
the case may be, at all offices or
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agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee and the Holders of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in the
Borough of Manhattan, The City of New York and as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as a Paying Agent with respect to the
Securities of any series and any related coupons, it will, on or before each due
date of the principal of (and premium, if any, on) or any interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum (in the Currency or Currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series)) sufficient to pay the principal
(and premium, if any) or any 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 and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or any interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due, such sum of money 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 such
action or any failure so to act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums of money for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
of money shall be paid to such Persons or otherwise disposed of as
herein provided;
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(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 of (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 of
money 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.
Except as provided in the Securities of any series, 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, on) or interest
on any Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, 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 or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such money held in
trust, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
its business.
SECTION 1005. Maintenance of Principal Properties. The Company
will cause all Principal Properties used or useful in the conduct of its
business or the business of a Restricted Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this
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Section shall prevent the Company from discontinuing the maintenance of any of
such properties or prevent or restrict the sale, abandonment or other
disposition of any of such properties if such action is, in the judgment of the
Company, desirable in the conduct of the business of the Company and its
Subsidiaries as a whole.
SECTION 1006. 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, (a) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary of the Company or upon the
income, profits or property of the Company or any Subsidiary of the Company, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary of the Company; 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.
SECTION 1007. Additional Amounts. If Securities of a series
provide for the payment of additional amounts to any Holder who is a non-United
States Person in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto such Additional Amounts as may be
so provided by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of a
Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are non-United States Persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officer's Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to
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hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer's
Certificate furnished pursuant to this Section or in the event the Trustee shall
not withhold or deduct any sums as a result of the non-receipt of an Officer's
Certificate pursuant to this Section.
SECTION 1008. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof so long as any Security is Outstanding
hereunder, an Officer's Certificate, stating that in the course of the
performance by the signatory of his or her duties as such officer of the Company
they would normally obtain knowledge of any Default by the Company in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, and stating whether or not they have obtained knowledge of any
such Default existing on the date of such statement and, if so, specifying each
such Default of which the signatory has knowledge and the nature thereof.
(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable upon
any officer listed in (a) above becoming aware of any Default, Event of Default
or default in the performance of any covenant, agreement or condition contained
in this Indenture, an Officer's Certificate specifying such Default, Event of
Default, default or event of default and what action the Company is taking or
proposes to take with respect thereto and the status thereof.
SECTION 1009. Waiver of Certain Covenants. With respect to the
Securities of any series, the Company may omit in any particular instance to
comply with any covenant or condition specified pursuant to Section 301 as being
subject to this Section 1009, if, before the time for such compliance, the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 1010. Limitations on Liens. The Company shall not
create, assume or suffer to exist any Lien on any of its property or assets,
without securing the Securities of any applicable series equally and ratably
with (or prior to) such secured Indebtedness; provided, however, that the
foregoing shall apply only to Liens which in the aggregate exceed 15% of the
Company's total consolidated assets as of the end of the Company's most recent
accounting period preceding the creation or assumption of any such Lien (reduced
by any Attributable Debt with respect to any Sale and Leaseback Transaction
permitted under Section 1011 below). This restriction will not apply to
Capitalized Leases or to Indebtedness secured by (a) Liens existing on the date
hereof and Liens on property of, or Indebtedness of, any Person at the time such
Person becomes a Subsidiary (whether by acquisition or otherwise, including
through merger or consolidation), (b) Liens in favor of the Company or a
Subsidiary of the Company, (c) Liens existing at the time of acquisition of the
assets secured thereby (including acquisition through merger or consolidation)
and purchase money Liens, and (d) any
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extension, renewal or refunding of any Lien referred to in the foregoing clauses
(a) through (c), inclusive.
SECTION 1011. Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Principal Property
unless (a) such Sale and Leaseback Transaction involves a lease for a term of
not more than three years; (b) such Sale and Leaseback Transaction is between
the Company and a Subsidiary of the Company or between Subsidiaries of the
Company; (c) the Company or such Restricted Subsidiary would be entitled to
incur indebtedness secured by a Lien on such Principal Property involved in such
Sale and Leaseback Transaction at least equal in amount to the Attributable Debt
with respect to such Sale and Leaseback Transaction pursuant to the first
sentence of the "Limitations on Liens" covenant in Section 1010 above without
equally and ratably securing the Securities of any applicable series pursuant to
such covenant; (d) the proceeds of such Sale and Leaseback Transaction are at
least equal to the fair market value thereof (as determined in good faith by the
Board of Directors of the Company) and the Company applies an amount equal to
the greater of the net proceeds of such sale or the Attributable Debt with
respect to such Sale and Leaseback Transaction within 180 days of such sale to
either (or a combination) of (i) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by payment at
maturity) of debt for borrowed money of the Company or a Subsidiary of the
Company that matures more than 12 months after its creation (other than debt
that is subordinated to the Securities or debt to the Company or a Subsidiary of
the Company) or (ii) the purchase, construction or development of other
comparable property; or (e) such Sale and Leaseback Transaction is entered into
within 180 days after the initial acquisition by the Company or such Restricted
Subsidiary, as the case may be, of the Principal Property subject to such Sale
and Leaseback Transaction.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by an
Officer's Certificate. In case of any redemption at the election of the Company
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed, and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities of any series (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company
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shall furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate;
provided that such method complies with the rules of any national securities
exchange or quotation system on which the Securities are then 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, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
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(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Euro
Securities shall be outside the United States) where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered 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 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003)) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an
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Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. 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 in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee
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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 such Holder's 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 Registered Security or Securities of the
same series and of like tenor, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
temporary global Security or permanent global Security is so surrendered, such
new Security so issued shall be a new temporary global Security or permanent
global Security, respectively. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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 such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with
Securities. Subject to Section 1203, the Company may, in satisfaction of all or
any part of any mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series to the Trustee
(other than any previously called for redemption or presented for repayment at
the option of the Holder) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been previously purchased or otherwise
acquired or 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, as provided for by the terms
of such Securities together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same 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 so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the
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sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officer's
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not more than 60 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 1103 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 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at the Repayment Price thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price of, and (except
if the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid on such
date.
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SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be repaid
at the option of the Holder, any Security so providing for such repayment, with
the "Option to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing), must be received by the Company at the Place of Payment therefor
specified in the terms of such Security (or at such other place or places of
which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire Repayment Price of such Security is to be repaid in
accordance with the terms of such Security, the portion of the Repayment Price
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of such Security
surrendered that is not to be repaid, must be specified. Any Security providing
for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, unless otherwise specified
as contemplated by Section 301, in the case of Registered Securities,
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons
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may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, and of like tenor, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid. If a temporary global
Security or permanent global Security is so surrendered, such new Security so
issued shall be a new temporary global Security or a new permanent global
Security, respectively.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance. If pursuant to Section 301 provision is made for either or
both of (a) defeasance of the Securities of a series under Section 1402 or (b)
covenant defeasance of the Securities of a series under Section 1403, then the
provisions of such Section 1402 or Section 1403, as the case may be, together
with Sections 1404, 1405 and 1406, shall be applicable to the Securities of such
series, and the Company may, at its option by Officer's Certificate, at any
time, with respect to the Securities of such series, elect to have either
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Fourteen.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series and subject to Sections 1405 and 1406, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series and any related coupons on
and after the date the conditions precedent set forth below are satisfied but
subject to satisfaction of the conditions subsequent set forth below
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged
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the entire indebtedness represented by the Outstanding Securities of such series
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all their other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities of such securities and any related coupons to receive,
solely from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any,
on) and interest on such Securities and any related coupons when such payments
are due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1007,
and such obligations as shall be ancillary thereto, (C) the rights, powers,
trusts, duties, immunities and other provisions in respect of the Trustee
hereunder and (D) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any related coupons. Following a defeasance, payment of
the Securities of such series may not be accelerated because of an Event of
Default.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under any
Section(s) of this Indenture applicable to such Securities that are determined
pursuant to Section 301 to be subject to this provision with respect to the
Outstanding Securities of such series and any related coupons on and after the
date the conditions precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below (hereinafter,
"covenant defeasance"), and such Securities and any related coupons shall
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such Sections, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities of such
series and any related coupons, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or by reason of reference in any such
Section to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default hereunder, but,
except as specified above, the remainder of this Indenture and such Securities
and any related coupons shall be unaffected thereby. Following a covenant
defeasance, payment of the Securities of such series may not be accelerated
because of an Event of Default solely by reference to such Sections specified
above in this Section 1403.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically noted below,
subsequent, to application of either Section 1402 or Section 1403 to any
Outstanding Securities of or within a series and any related coupons:
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(1) The Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to comply
with the provisions of this Article Fourteen applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for the benefit of, and dedicated
solely to, the Holders of such Securities and any related coupons, (A)
Dollars in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (or other qualifying trustee), to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) each installment of
principal of (and premium, if any, on) and interest on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any)
or interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture, the Securities of such
series and the coupons, if any, appertaining thereto, and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any related coupons on the due dates
thereof. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem
all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article
Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as paragraphs (4) and
(5) of Section 501 are concerned, at any time during the period ending
on the 91st day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in TIA Section 310(b) or otherwise for purposes of
the Trust Indenture Act with respect to any securities of the Company
or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is a
party or by which it is bound.
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(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(6) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution
of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding
Securities of such series and any related coupons 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.
(7) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series and any
related coupons 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.
(8) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent and subsequent provided for in this Indenture
relating to either the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied
with.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of the Outstanding Securities of any series and any related coupons
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any related coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any related coupons 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 money or Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof.
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Anything in this Article Fourteen 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 (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement. Anything herein to the contrary
notwithstanding, if and to the extent the deposited money or Government
Obligations (or the proceeds thereof) either (i) cannot be applied by the
Trustee or any Paying Agent in accordance with Section 1405 because of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application or (ii) are for any reason insufficient
in amount, then (x) the Company's obligation, if any, to pay principal of and
any premium and interest on the Securities of such series and any related
coupons shall be reinstated to the extent necessary to cover the deficiency on
any due date for payment and (y) in the case of a covenant defeasance under
Section 1403, the Company's obligation, if any, under any Sections applicable to
such Securities that are determined pursuant to Section 301 to be subject to
this provision shall be reinstated unless and until all deficiencies on any due
date for payment are covered. In any case specified in clause (i), the Company's
interest in the deposited money and Government Obligations (and proceeds
thereof) shall be reinstated to the extent the Company's payment obligations are
reinstated.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any and all series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the Borough of Manhattan, The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 331/3% in aggregate principal amount of
the Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the
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first publication or mailing of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York or in London for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent, waiver, request, demand, notice, authorization, direction
or other action which this Indenture expressly provides may be made, given or
taken by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as
limited by the first paragraph of the proviso to Section 902, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of not less than a specified percentage, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
81
as aforesaid only by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such consent, waiver, request,
demand, notice, authorization, direction or other action shall be taken
into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
82
(c) At any meeting of the Holders, each Holder of a Security
of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
* * * * *
This Indenture 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 Indenture.
83
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
VIACOM INC.,
as Issuer
By:
------------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Viacom Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
A-1-2
This certificate excepts and does not relate to [U.S.$] ___ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________ , 20__
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signatory)
Name:
Title:
2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$]_______ principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source ("United States person(s)"), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise Viacom
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated: ____________________, 20__
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office, as Operator of the
Euroclear System]
[Clearstream Banking, societe anonyme]
By:
----------------------------------------
Name:
Title
2
Exhibit 4.2
- --------------------------------------------------------------------------------
VIACOM INC.,
Issuer
and
THE BANK OF NEW YORK,
Trustee
--------------------------
Indenture
Dated as of
--------------------------
Providing for the Issuance
of
Senior Subordinated Debt Securities
VIACOM INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ]
Trust Indenture Act Indenture
Section Section
ss. 310 (a)(1) 607(a)
(a)(2) 607(a)
(b) 607(b), 609
ss. 312 (c) 701
ss. 314 (a) 704
(a)(4) 1008(a)
(c)(1) 102
(c)(2) 102
(e) 102
ss. 315 (b) 601
ss. 316 (a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss. 317 (a)(1) 503
(a)(2) 504
ss.318 (a) 111
(c) 111
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.......................................................1
SECTION 102. Compliance Certificates and Opinions.............................13
SECTION 103. Form of Documents Delivered to Trustee...........................13
SECTION 104. Acts of Holders..................................................14
SECTION 105. Notices, etc., to Trustee and Company............................15
SECTION 106. Notice to Holders; Waiver........................................16
SECTION 107. Effect of Headings and Table of Contents.........................17
SECTION 108. Successors and Assigns...........................................17
SECTION 109. Separability Clause..............................................17
SECTION 110. Benefits of Indenture............................................17
SECTION 111. Governing Law....................................................17
SECTION 112. Legal Holidays...................................................17
SECTION 113. Submission to Jurisdiction: Appointment
of Agent for Service...........................................17
ARTICLE TWO SECURITIES FORMS
SECTION 201. Forms of Securities..............................................18
SECTION 202. Form of Trustee's Certificate of Authentication..................18
SECTION 203. Securities Issuable in Global Form...............................19
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.............................19
SECTION 302. Denominations....................................................24
SECTION 303. Execution, Authentication, Delivery and Dating...................24
SECTION 304. Temporary Securities.............................................26
SECTION 305. Registration, Registration of Transfer and
Exchange.......................................................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons....................................................32
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset........................................33
SECTION 308. Optional Extension of Maturity...................................36
SECTION 309. Persons Deemed Owners............................................36
SECTION 310. Cancellation.....................................................37
SECTION 311. Computation of Interest..........................................37
SECTION 312. Currency and Manner of Payments in Respect of
Securities.....................................................37
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.....41
SECTION 314. CUSIP Numbers....................................................41
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..........................42
SECTION 402. Application of Trust Funds.......................................43
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default................................................43
SECTION 502. Acceleration of Maturity; Rescission and Annulment...............45
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.....................................................46
SECTION 504. Trustee May File Proofs of Claim.................................46
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.......................................47
SECTION 506. Application of Money Collected...................................47
SECTION 507. Limitation on Suits..............................................48
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................48
SECTION 509. Restoration of Rights and Remedies...............................49
SECTION 510. Rights and Remedies Cumulative...................................49
SECTION 511. Delay or Omission Not Waiver.....................................49
SECTION 512. Control by Holders of Securities.................................49
SECTION 513. Waiver of Past Defaults..........................................49
SECTION 514. Waiver of Stay or Extension Laws.................................50
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults...............................................50
SECTION 602. Certain Rights of Trustee........................................50
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.....................................................52
SECTION 604. May Hold Securities..............................................52
SECTION 605. Money Held in Trust..............................................52
SECTION 606. Compensation and Reimbursement and Indemnification
of Trustee.....................................................52
SECTION 607. Corporate Trustee Required; Eligibility..........................53
SECTION 608. Disqualification; Conflicting Interests..........................53
SECTION 609. Resignation and Removal; Appointment of Successor................53
SECTION 610. Acceptance of Appointment by Successor...........................55
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business....................................................56
SECTION 612. Appointment of Authenticating Agent..............................56
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.....................58
SECTION 702. Preservation of Information; Communications
to Holders.....................................................58
SECTION 703. Reports by Trustee...............................................58
SECTION 704. Reports by Company...............................................59
SECTION 705. Calculation of Original Issue Discount...........................59
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms..............59
SECTION 802. Successor Person Substituted.....................................60
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...............60
SECTION 902. Supplemental Indentures with Consent of Holders..................62
ii
SECTION 903. Execution of Supplemental Indentures.............................63
SECTION 904. Effect of Supplemental Indentures................................63
SECTION 905. Conformity with Trust Indenture Act..............................63
SECTION 906. Reference in Securities to Supplemental Indentures...............63
SECTION 907. Effect on Senior Indebtedness....................................64
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
Inter..........est.............................................64
SECTION 1002. Maintenance of Office or Agency.................................64
SECTION 1003. Money for Security Payments to Be Held in Trust.................66
SECTION 1004. Corporate Existence.............................................67
SECTION 1005. Maintenance of Principal Properties.............................67
SECTION 1006. Payment of Taxes and Other Claims...............................67
SECTION 1007. Additional Amounts..............................................68
SECTION 1008. Compliance Certificate..........................................68
SECTION 1009. Waiver of Certain Covenants.....................................69
SECTION 1010. Limitations on Liens............................................69
SECTION 1011. Limitations on Sale and Leaseback Transactions..................69
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................................70
SECTION 1102. Election to Redeem; Notice to Trustee...........................70
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...............70
SECTION 1104. Notice of Redemption............................................71
SECTION 1105. Deposit of Redemption Price.....................................72
SECTION 1106. Securities Payable on Redemption Date...........................72
SECTION 1107. Securities Redeemed in Part.....................................73
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article........................................74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...........74
SECTION 1203. Redemption of Securities for Sinking Fund.......................74
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article........................................75
SECTION 1302. Repayment of Securities.........................................75
SECTION 1303. Exercise of Option..............................................75
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable................................................76
SECTION 1305. Securities Repaid in Part.......................................77
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance............................................77
SECTION 1402. Defeasance and Discharge........................................77
SECTION 1403. Covenant Defeasance.............................................78
iii
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.................78
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions............80
SECTION 1406. Reinstatement...................................................80
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.......................81
SECTION 1502. Call, Notice and Place of Meetings..............................81
SECTION 1503. Persons Entitled to Vote at Meetings............................81
SECTION 1504. Quorum; Action..................................................82
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings........................................83
SECTION 1506. Counting Votes and Recording Action of Meetings.................83
ARTICLE SIXTEEN
SECTION 1601. Agreement to Subordinate........................................84
SECTION 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities......................84
SECTION 1603. No Payment on Securities in Event of Default
on Senior Indebtedness.........................................86
SECTION 1604. Payments on Securities Permitted................................86
SECTION 1605. Authorization of Holders to Trustee to Effect
Subordination..................................................86
SECTION 1606. Notices to Trustee..............................................86
SECTION 1607. Trustee as Holder of Senior Indebtedness........................87
SECTION 1608. Modifications of Terms of Senior Indebtedness...................87
SECTION 1609. Reliance on Judicial Order or Certificate of
Liquidating Agent..............................................88
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
iv
INDENTURE, dated as of , between VIACOM INC., a Delaware
corporation (the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036 and THE BANK OF NEW YORK, a New York banking corporation,
as Trustee (the "Trustee"), having its Corporate Trust Office at 101 Barclay
Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
senior subordinated debt securities (the "Securities") evidencing its unsecured
and subordinated indebtedness, which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company), and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more
series, unlimited as to principal amount, to bear such rates of interest, to
mature at such times and to have such other provisions as provided in this
Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, (the "TIA") that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular and, pursuant to Section 301, any such item may,
with respect to any particular series of Securities, be amended,
or modified or specified as being inapplicable;
(2) all other terms used herein which are defined in the
TIA, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) except as otherwise herein expressly provided, all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with
generally accepted accounting principles in the United States of
America, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States of America from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1007.
"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.
"Agent" means any Security Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Attributable Debt" means, with regard to a Sale and Leaseback
Transaction with respect to any Principal Property, the lesser of: (a) the fair
market value of such property (as determined in good faith by the Board of
Directors of the Company); or (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and excluding any
unexercised renewal or other extension options exercisable by the lessee, and
excluding amounts on account of maintenance and repairs, services, taxes and
similar charges and contingent rents), discounted at the rate of interest set
forth or implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum borne by the
Securities of the applicable series then Outstanding) compounded semi-annually.
In the case of any lease which 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 pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
2
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made on the same or on different days of the
week, in the same or in different newspapers, in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"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, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other particular location are authorized or obligated by law or executive order
to close.
"Capitalized Lease" means any obligation of a Person to pay
rent or other amounts incurred with respect to real property or equipment
acquired or leased by such Person and used in its business that is required to
be recorded as a capital lease in accordance with generally accepted accounting
principles consistently applied as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture 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.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by one Officer of the Company and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
3
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"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 of this Indenture is located at 101
Barclay Street, New York, New York 10286.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, as applicable, either the U.S. Depositary
or the Common Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
4
"Euro Security" means any Bearer Security, any Security
initially represented by a Security in temporary global form exchangeable for
Bearer Securities and any Security in permanent global form exchangeable for
Bearer Securities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any Currency, including, without
limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association
of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, 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 or such government which issued the Foreign
Currency in which the Securities of such series are payable, the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name the Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, means the bearer thereof.
5
"Indebtedness" of any Person means, without duplication, (i)
any obligation of such Person for money borrowed, (ii) any obligation of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) any reimbursement obligation of such Person in respect of letters of
credit or other similar instruments which support financial obligations which
would otherwise become Indebtedness, (iv) any obligation of such Person under
Capitalized Leases (other than in respect of (x) telecommunications equipment
including, without limitation, satellite transponders, and (y) theme park
equipment and attractions) and (v) any obligation of any third party to the
extent secured by a Lien on the assets of such Person; provided, however, that
"Indebtedness" of such Person shall not include any obligation of such Person
(i) to any Subsidiary of such Person or to any Person with respect to which such
Person is a Subsidiary or (ii) specifically with respect to the production,
distribution or acquisition of motion pictures or other programming rights,
talent or publishing rights.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, 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
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"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, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Make-Whole Amount" means, with respect to a series of
Securities, the excess, if any, of (i) the aggregate present value as of the
Redemption Date of principal being redeemed and the amount of interest
(exclusive of interest accrued to the Redemption Date) that would have been
payable if redemption had not been made, determined by discounting, on a
semiannual basis, the remaining principal and interest payment for such series
of Securities at the Reinvestment Rate (determined on the third Business Day
preceding the date notice of redemption shall have been given) from the dates on
which the principal and interest would have been payable with respect to such
series of Securities if the redemption had not been made, to the
6
applicable Redemption Date, over (ii) the aggregate principal amount of the
applicable series of Securities being redeemed.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"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, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion, or otherwise.
"non-United States Person" means a Person who is not a United
States Person.
"Notice of Default" shall have the meaning provided in Section
501.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company.
"Officer's Certificate" means a certificate signed by any
Officer of the Company in his or her capacity as such Officer and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel for
the Company.
7
"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 502.
"Outstanding", when used with respect to Securities or any
series of any Securities, means, as of the date of determination, all Securities
or all Securities of such series, as the case may be, theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder 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 and any coupons appertaining thereto, 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, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 301 hereof, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security and (iii) 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 making
8
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person who has an account with a
Depositary.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities or coupons on behalf of the
Company.
"Periodic Offering" means an offering of a Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the United States) where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company or
any Restricted Subsidiary and located in the United States, the aggregate book
value of which on the date of determination exceeds $1.0 billion, other than any
such real property and related fixtures or improvements, which, as determined in
good faith by the Board of Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
9
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reinvestment Rate" means %for the series of Securities
designated as % Notes/Debentures due and %for the series of Securities
designated as % Notes/Debentures due, in each case plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent Federal
Reserve Statistical Release H.15 (or any comparable successor publication) under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity, as of the
Maturity of the principal of the series of Securities being redeemed or paid. If
no maturity exactly corresponds to the Maturity of such series of Securities,
yields for the two published maturities most closely corresponding to the
Maturity of such series of Securities would be so calculated and the
Reinvestment Rate would be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month. The most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount will be
used for purposes of calculating the Reinvestment Rate.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date", when used with respect to any Security to be
repaid at the option of the Holder, means the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject
"Restricted Subsidiary" means a corporation all of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of its Subsidiaries, or by the Company and one or more
of its Subsidiaries, which is incorporated under the laws of a State of the
United States, and which owns a Principal Property.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Person; provided, however, that "Sale and Leaseback Transaction"
shall not include such arrangements that were
10
existing on the date set forth in a prospectus supplement, or at the time any
Person owning a Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or consolidation).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" of the Company means, without
duplication, (i) any obligation of the Company for money borrowed, (ii) any
obligation of the Company evidenced by bonds, debentures, notes, or other
similar instruments, other than the senior subordinated debt securities or
junior subordinated debt securities, (iii) any reimbursement obligation of the
Company in respect of letters of credit or other similar instruments which
support financial obligations which would otherwise become Indebtedness, (iv)
any obligation of the Company under Capitalized Leases (other than in respect of
(x) telecommunications equipment including, without limitation, satellite
transponders, and (y) theme park equipment and attractions), (v) any guarantee
of the Company for indebtedness of other persons and (vi) any obligation of any
third party to the extent secured by a Lien on the assets of the Company;
provided, however, that "Senior Indebtedness" of the Company shall not include
any obligation of the Company (i) to any Subsidiary of the Company or to any
Person with respect to which the Company is a Subsidiary or (ii) specifically
with respect to the production, distribution or acquisition of motion pictures
or other programming rights, talent or publishing rights.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"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 or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority
of the outstanding Voting Stock of which is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation), including, without limitation, a partnership or joint venture,
in which such Person, one or more Subsidiaries thereof, or such Person and one
or more Subsidiaries thereof, directly or indirectly, at the date of the
determination thereof, has at
11
least majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other Persons performing similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, any individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the Untied States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more Untied States Persons have the authority to control all
substantial decisions of the trust. Notwithstanding the preceding sentence, to
the extent provided in the Treasury regulations, certain trusts in existence on
August 20, 1996, and treated as United States Persons prior to such date that
elect to continue to be treated as United States Persons, will also be United
States Persons.
"U.S. 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
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act, and if any time there is more than one such Person,
"U.S. Depositary" as used with respect to the Securities of any series shall
mean the U.S. Depositary with respect to the Securities of such series.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
12
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture (other than in connection with the delivery of any Security offered in
a Periodic Offering to the Trustee for authentication pursuant to Section 303),
the Company shall furnish to the Trustee an Officer's 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 (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
or she has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations
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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 as 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 as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, 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. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(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 or her 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 that the Trustee deems reasonably
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank,
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banker or other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The ownership of Bearer Securities may also be proved
in any other manner that the Trustee deems reasonably sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in 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.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. 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 eleven months after the
record date.
(f) 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, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. 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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished,
filed or mailed, first class postage prepaid, in writing to or
with the Trustee at its Corporate Trust Office, or
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture, to the attention of its Secretary, or at any other
address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Except as otherwise
expressly provided herein or otherwise specified with respect to any Securities
pursuant to Section 301, where this Indenture provides for notice of any event
to Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each such 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. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such notification
to Holders of Registered Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder. In any case where notice to Holders of Registered Securities
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 of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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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 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 107. 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 108. 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 109. Separability Clause. In case any provision in
this Indenture or in any Security or coupon 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 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts of laws. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment 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 any
Security or coupon 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 principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Submission to Jurisdiction. The Company hereby
irrevocably submits to the non-exclusive jurisdiction of any New York state or
federal court sitting in The
17
City of New York is any action or proceeding arising out of or relating to the
Indenture or the Securities of any series, and the Company hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York state or federal court. The Company hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series, the Bearer Securities, if any, of each series and
related coupons, the temporary global Securities of each series, if any, and the
permanent global Securities of each series, if any, shall be in substantially
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
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 Officer
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SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee or the Security Registrar 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 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee or the
Security Registrar 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 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 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 or
the Security Registrar the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 201 and Section 307,
unless otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is
19
unlimited. The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Sixteen.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer's Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906, 1107 or 1305) and except for any Securities
which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of
the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which any such
interest shall accrue or the method by which any such date or
dates shall be determined, the Interest Payment Dates on which
any such interest will be payable and the Regular Record Date, if
any, for any interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date or dates
shall be determined, and the basis upon which such interest shall
be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable (which in the case of
Euro Securities shall be outside the United States), any
Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be
surrendered for exchange, where Securities of that series that
are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable, and, if different than the location
specified in Section 105, the place or places where notices or
demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency or Currencies in which, and other terms
and conditions upon which Securities,
20
of the series may be redeemed, in whole or in part, at the option
of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which,
the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which, Securities of
the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if
other than denominations of $5,000, the denomination or
denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502, upon redemption of the Securities of the
series which are redeemable before their Stated Maturity, upon
surrender for repayment at the option of the Holder, or which the
Trustee shall be entitled to claim pursuant to Section 504 or the
method by which such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in
which payment of the principal of (or premium, if any) or
interest, if any, on the Securities of the series shall be made
or in which the Securities of the series shall be denominated and
the particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section
312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities,
equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in
one or more Currencies, other than that in which such Securities
are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency
or Currencies in which such Securities are denominated or stated
to be payable and the Currency or Currencies in which such
Securities are to be paid, in each case in accordance with, in
addition to or in lieu of any of the provisions of Section 312;
21
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section
1009) of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale
or delivery of Bearer Securities and the terms upon which Bearer
Securities of the series may be exchanged for Registered
Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the
series are to be issuable initially in temporary global form with
or without coupons and whether any Securities of the series are
to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of the
series, and the circumstances under which and the place or places
where such exchanges may be made and if Securities of the series
are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, the
extent to which, or the manner in which, any interest payable on
a temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 304; and the
extent to which, or the manner in which, any interest payable on
a permanent global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 307;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
22
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates,
documents or conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1007 on the Securities of the series to any Holder who is
a non-United States Person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such Securities
will be so convertible or exchangeable; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the
requirements of the Trust Indenture Act) at which the Securities
will be issued and any modification of the definitions set forth
herein.
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
(subject to Section 303) and set forth in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need 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 one or more Board Resolutions, a copy of
an appropriate record of such action(s) 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 Officer's Certificate setting forth the terms of the
Securities of such series.
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture referred to above may provide general
terms or parameter for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated by
the third paragraph of Section 303.
23
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, or its President or one of
its Executive Vice Presidents or Vice Presidents or by its Treasurer or one of
its Assistant Treasurers, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons 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
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in the case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series; provided
further, however, that, in connection with its original issuance, no Euro
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Euro Security (other than a
Security in temporary global form) may be delivered in connection with its
original issuance only if the Person entitled to physical delivery of such Euro
Security (which, in case of a Euro Security to be received in exchange for all
or a portion of a Security in temporary global form, shall be the account holder
with Euroclear or Clearstream to whose account all or such portion of such
Security in temporary global form has been credited) shall have furnished a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date. If any Security shall be represented by a
permanent global Security, then, for purposes of this Section and Section 304,
the notation of a beneficial owner's interest therein upon original
24
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be physical delivery in connection with its original
issuance of such beneficial owner's interest in such permanent global Security.
Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the Securities of any
series are to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Securities
and determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. 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 TIA Section 315(a) through
315(d)) shall be fully protected in relying upon an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and any coupons
have been, or in the case of Securities of a series offered
in a Periodic Offering, will be, established in conformity
with the provisions of this Indenture, subject, in the case
of Securities of a series offered in a Periodic Offering, to
any conditions specified in such Opinion of Counsel; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to
such other qualifications as such counsel shall conclude do
not materially affect the rights of Holders of such
Securities and any coupons.
Notwithstanding the provisions of Section 301 and the two
preceding paragraphs, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officer's Certificate
otherwise required pursuant to Section 301 or the Company Order, Opinion of
Counsel or Officer's Certificate otherwise required pursuant to such preceding
paragraphs at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate and deliver such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the
25
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee. Notwithstanding the generality of the foregoing, the
Trustee will not be required to authenticate Securities denominated in a Foreign
Currency if the Trustee reasonably believes that it would be unable to perform
its duties with respect to such Securities.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Section 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, 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 310 together with a written statement (which
need not comply with Section 102 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 never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities or coupons may determine, as
conclusively evidenced by their execution of such Securities or coupons. In the
case of Securities of any series issuable as Bearer Securities, such temporary
Securities shall be delivered only in compliance with the conditions set forth
in Section 303 and may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), 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
26
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further, however, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, or to
the Security Registrar, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Security held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to Section 301;
and provided further that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the
27
account holder instructs Euroclear or Clearstream, as the case may be, to
request such exchange on his behalf and delivers to Euroclear or Clearstream, as
the case may be, a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and Clearstream,
the Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage, transportation
and the like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or Clearstream. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee or the applicable Paying Agent of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other forms as may be established pursuant to Section 301), for credit without
further interest on or after such Interest Payment Date to the respective
accounts of Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to Euroclear
or Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth as Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301). Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to this paragraph
shall satisfy the certification requirements of the preceding two paragraphs of
this Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustee or the applicable
Paying Agent immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. 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 of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
28
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided,
and for facilitating exchanges of temporary global Securities for permanent
global Securities or definitive Securities, or both, or of permanent global
Securities for definitive Securities, or both, as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons (except as provided below) and with all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such
29
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee or the Security Registrar definitive
Securities of that series in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, in accordance with instructions given by the Company to the
Trustee or the Security Registrar and the Common Depositary or the U.S.
Depositary, as the case may be (which instructions shall be in writing but need
not comply with Section 102 or be accompanied by an Opinion of Counsel), such
permanent global Security shall be surrendered from time to time by the Common
Depositary or the U.S. Depositary, as the case may be, or such other depositary
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, or to the Security Registrar to be
exchanged, in whole or from time to time in part, for definitive Securities of
the same series without charge and the Trustee shall authenticate and deliver,
in exchange for each portion of such permanent global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the permanent global Security shall
be issuable only in the form in which the Securities are issuable, as specified
as contemplated by Section 301, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent
30
global Security shall be mailed or otherwise delivered to any location in the
United States. Promptly following any such exchange in part, such permanent
global Security shall be returned by the Trustee or the Security Registrar to
the Common Depositary or the U.S. Depositary, as the case may be, or such other
depositary referred to above in accordance with the Company's instructions. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be 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 Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar or any transfer agent, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company 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 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for
31
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, 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 or coupon has
been acquired by a bona fide purchaser, the Company shall, subject to the
following paragraph, execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of the same
series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon, as the case may be; provided, however,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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 with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and
32
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, 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 or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset. (a) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, on any Registered Security that 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 at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) transfer to an account maintained by the payee
located in the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of any U.S. Depositary, and/or to
each of Euroclear and Clearstream with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for the purpose
of permitting such U.S. Depositary and/or each of Euroclear and Clearstream to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that 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 registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted
33
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 Registered 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
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) 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 on or 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 Registered 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 mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered
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). In case a Bearer Security of any series is surrendered
at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered 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, such
manner of payment shall be deemed practicable by the Trustee.
34
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, 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.
35
SECTION 308. Optional Extension of Maturity. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate, if any, provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment
of a Registered 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 Registered Security is registered as the absolute owner of such Registered
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
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.
36
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon 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, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
temporary or permanent Security, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a Common
Depositary or a U.S. Depositary, as the case may be, or impair, as between a
Common Depositary or a U.S. Depositary and Holders of beneficial interests in
such temporary or permanent global Security, the operation of customary
practices governing the exercise of the rights of the Common Depositary or the
U.S. Depositary as Holder of such temporary or permanent global Security.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
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 any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to
37
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fourteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
38
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee of each
such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
39
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and
such single currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the
date of such replacement equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market
Exchange Rate immediately before such division, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion
Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
An "Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series
of Registered Securities as specified pursuant to clause 13 of Section
301 by which the written election referred to in Section 312(b) may be
made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written
40
notice thereof to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly give written
notice to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency.
SECTION 314. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use),
and, if so, the Trustee shall indicate the respective "CUSIP", "CINS" or "ISIN"
numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
41
as contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section
1007), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
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,
42
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose, solely for
the benefit of the Holders, an amount in the Currency in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has irrevocably paid or caused to be
irrevocably paid all other sums payable hereunder by the Company;
and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 612 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
any termination of this Indenture.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons 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, if any, for whose payment such money has been deposited with
or received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. 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 occasioned by the provisions of Article Sixteen or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or is specifically deleted or modified in or pursuant to the
supplemental indenture or a Board Resolution establishing such series of
Securities or is in the form of Security for such series:
43
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable, at its
Maturity, upon acceleration, redemption or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series) and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(5) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law,
or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due or the taking of corporate action by
the Company in furtherance of any such action; or
(6) any other Event of Default provided with respect to
Securities of that series.
44
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section 501(4)
or (5)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may, and the Trustee at the request of such Holders shall,
declare immediately due and payable, by a notice in writing to the Company (and
to the Trustee if given by Holders) the unpaid principal (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) of (and
premium, if any) and accrued interest in respect of each Security then
Outstanding in that series (the "Default Amount"). Upon any such declaration,
the Default Amount shall become immediately due and payable on all Outstanding
Securities of that series. Notwithstanding any other provision of this Section
502, if an Event of Default specified in Section 501(4) or (5) occurs then, the
Default Amount on the Securities then Outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Trustee may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium,
if any, on) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
45
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon 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 its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee (such
demand and payment in the case of Euro Securities to occur only outside of the
United States), for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons of
that series for principal (and premium, if any) and interest, if any, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest, if any, at the rate or rates borne by or provided for
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, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon Securities of
such series 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 Securities of such series, 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 and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of 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 of a
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series 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 any overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
46
(i) to file and prove a claim for the whole amount of
principal (or in the case of Original Issue Discount Securities,
such portion of the principal as may be provided in the terms
thereof)(and premium, if any) and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
(which distribution, in the case of Euro Securities, shall occur
only outside the United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, their agents and counsel, and any other amounts due the Trustee under
Section 606.
Subject to Article Eight and Section 902 and unless otherwise
provided as contemplated by Section 301, nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and 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 and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be (such presentation, in the case of Euro Securities or coupons,
to occur only outside the United States), 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 606;
47
SECOND: Subject to Article 16, to the payment (such payment,
in the case of Euro Securities, to occur only outside the United
States) of the amounts then due and unpaid upon the Securities and
coupons for principal (and premium, if any) and interest, if any, 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 aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an
indemnity, reasonably satisfactory to the Trustee, against the
costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such Security
or payment of such coupon on the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date or, in
the case of repayment at the option of the Holders on the Repayment Date) and to
institute suit
48
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon 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 the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security or coupon 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 of Securities or coupons, as
the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than 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) the Trustee may refuse to follow any direction which, in
the Opinion of Counsel to the Trustee, is unduly prejudicial to
other Holders of Securities of such series not consenting or would
subject the Trustee to personal liability.
SECTION 513. Waiver of Past Defaults. Subject to Section 502,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on
49
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to Securities of such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related
coupons, or
(2) in respect of a provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series, or in the payment
of any sinking fund installment with respect to the Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(3) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice,
50
request, direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties.
(2) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any
coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
a Board Resolution, an Opinion of Counsel or an Officer's
Certificate.
(4) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee in good
faith shall determine to make such further inquiry or investigation,
it shall be entitled upon reasonable notice and at reasonable times
during normal business hours to examine the books, records and
premises of the Company, personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
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
51
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons 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 or coupons, 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 in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. 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 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement and
Indemnification of Trustee. The Company agrees:
(1) To pay to the Trustee or any predecessor Trustee from time
to time such reasonable compensation for all services rendered by it
hereunder as has been agreed upon in writing (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 each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or such predecessor 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.
(3) To indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own 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
52
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia 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. 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 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 609. 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 610.
(b) Subject to Section 609(a) hereof, 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.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by an Officer's Certificate
delivered to the Trustee, provided that contemporaneously therewith (x) the
Company immediately appoints a successor Trustee with respect to the Securities
of such series meeting the requirements of Section 607 hereof and (y) the terms
of Section 610 hereof are complied with in respect of such appointment (the
Trustee being removed hereby agreeing to execute the instrument contemplated by
Section 610(b) hereof, if applicable, under such circumstances) and provided
further that no Default with respect to such Securities shall have occurred and
then be continuing at such time, or (ii) Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any Holder of
53
a Security 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 607
and shall fail to resign after written request therefor by the
Company or by any 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 or pursuant to an Officer's
Certificate may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) 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
or pursuant to a Board Resolution or Officer's Certificate, 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). 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, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security 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 Securities of such series.
(g) 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
in the manner provided for notices to the
54
Holders of Securities in Section 106. 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 610. 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 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 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, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust 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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definition of those terms
in Section 101 which contemplate such situation.
(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
55
Trustee all such rights, powers and trusts referred to in paragraph (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. 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 of 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 or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 612. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents (which may be an Affiliate or
Affiliates of the Company) with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. 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, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State 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 authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid 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
56
surplus as set forth in its most recent report of condition so published. In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall promptly
give written notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve in the manner
set forth in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment 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 or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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
57
By:
---------------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be an
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities, provided that the terms
and conditions of such appointment are acceptable to the Trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any
agent of any of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, 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 TIA Section
312(b).
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 which meets the requirements of TIA Section 313(a).
58
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 704. Reports by Company. The Company will:
(a) 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;
(b) 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.
The Trustee shall transmit by mail to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (a) and (b) of this Section.
SECTION 705. Calculation of Original Issue Discount. Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain
Terms. The Company may not consolidate or merge with or into another
corporation, or sell or convey all or substantially all of its property and
assets to another Person unless: (i) immediately after such consolidation,
merger, sale or conveyance no Event of Default or Default shall have occurred
and be continuing; (ii) the Surviving Person in such merger or consolidation (if
other than the Company) or Person to whom such property and assets are sold or
conveyed (if other than the Company) is a corporation organized under the laws
of the United States or any state thereof, and such Person (if other than the
Company) through a supplemental indenture assumes payment of the principal of
(premium, if any, on) and interest on, the Outstanding Securities of the
applicable series and the performance and observance of all the covenants and
conditions of the Indenture with respect to the Company; (iii) the Company shall
have delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale or conveyance and
such supplemental indenture comply with the applicable provisions of the
Indenture and that all conditions precedent therein provided for relating to
such consolidation, merger, sale or
59
conveyance have been complied with. The Company may consolidate or merge with or
into, or sell or convey all or substantially all of its property and assets to
any Subsidiary. For purposes of this Section, "sell or convey all or
substantially all of its property and assets" shall mean property and assets
contributing in the aggregate at least 80% of the Company's total consolidated
revenues as reported in the Company's last available periodic financial report
(quarterly or annual, as the case may be) filed with the Commission.
SECTION 802. Successor Person Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or any sale or conveyance of all or substantially all of the
property and assets of the Company to any Person in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale or conveyance is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and in the event of any such sale or conveyance, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in Section 801) shall be
discharged of all obligations and covenants under this Indenture and the
Securities and any coupons appertaining thereto, and may be dissolved or
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Unless otherwise specified in Section 902, without the consent of any
Holders of Securities or coupons, the Company, when authorized by or pursuant to
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 reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained in accordance
with Article Eight hereof; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related
coupons (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 for the benefit of
the Holders of all or any series of Securities (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that
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allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of
the Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; 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 pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301,
including the provisions and procedures relating to Securities
convertible into or exchangeable for any securities of any Person
(including the Company); 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;
or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of all
61
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture which affect such series of Securities or of modifying in any
manner the rights of the Holders of Securities of such series and any related
coupons under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of each such series affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest
on, any Security; or the terms of any sinking fund with respect to
any Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption
thereof, or repayment thereof at the option of the Holder, or change
any obligation of the Company to pay Additional Amounts as
contemplated by Section 1007 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or upon the redemption thereof or
the amount thereof provable in bankruptcy pursuant to Section 504,
or adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
Currency 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 or, in the case of repayment at the option of the Holder, on or
after the Repayment Date), or modify the provisions of this
Indenture with respect to the mandatory redemption of Securities or
repayment of the Securities at the option of the Holder in a manner
adverse to any Holder of any Securities or any coupons appertaining
thereto, or adversely affect any right to convert or exchange any
Security as may be provided pursuant to Section 301 herein, or
(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 with respect to such series
(of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture,
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of
this proviso, in accordance with the requirements of Sections 610(b)
and 901(7), or
62
(4) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to the
Holders.
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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. 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 (which
delivery, in the case of
63
Euro Securities, shall occur only outside the United States) by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article Sixteen without the consent of such holder.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay, in the Currency or Currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series), the principal of (and premium, if any, on) and
any interest on the Securities of that series in accordance with the terms of
such Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the respective coupons for such
interest installments.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, which agency
initially shall be The Bank of New York, 101 Barclay Street, New York, New York
10286, Attention: . If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of that series pursuant
to Section 1007); provided, however, that, if the Securities of that series are
listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of
64
that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States, an office or agency where any Registered Securities
of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee and give prompt notice to the Holders as provided in Section 106 of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1007) at any Paying Agent for such series
located outside the United States, and the Company hereby appoints the same as
its agent to receive all such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, if any, or interest
on Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to any account maintained with a financial institution located in the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of (and premium, if
any, on) and any interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, or the office or agency of the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, if any, interest or Additional Amounts, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee and the Holders of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in the
Borough of Manhattan, The City of New York and as its agent to receive all
such presentations, surrenders, notices and demands.
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SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as a Paying Agent with respect to the
Securities of any series and any related coupons, it will, on or before each due
date of the principal of (and premium, if any, on) or any interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum (in the Currency or Currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series)) sufficient to pay the principal
(and premium, if any) or any 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 and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or any interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due, such sum of money 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 such
action or any failure so to act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums of money for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series
in trust for the benefit of the Persons entitled thereto until such
sums of money 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 of (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 of
money 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.
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Except as provided in the Securities of any series, 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, on) or interest
on any Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, 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 or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such money held in
trust, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
its business.
SECTION 1005. Maintenance of Principal Properties. The Company
will cause all Principal Properties used or useful in the conduct of its
business or the business of a Restricted Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the maintenance of any of such properties or prevent or restrict
the sale, abandonment or other disposition of any of such properties if such
action is, in the judgment of the Company, desirable in the conduct of the
business of the Company and its Subsidiaries as a whole.
SECTION 1006. 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, (a) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary of the Company or upon the
income, profits or property of the Company or any Subsidiary of the Company, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary of the Company; 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.
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SECTION 1007. Additional Amounts. If Securities of a series
provide for the payment of additional amounts to any Holder who is a non-United
States Person in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto such Additional Amounts as may be
so provided by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of a
Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are non-United States Persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officer's Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer's Certificate
furnished pursuant to this Section or in the event the Trustee shall not
withhold or deduct any sums as a result of the non-receipt of an Officer's
Certificate pursuant to this Section.
SECTION 1008. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof so long as any Security is Outstanding
hereunder, an Officer's Certificate, stating that in the course of the
performance by the signatory of his or her duties as such officer of the Company
they would normally obtain knowledge of any Default by the Company in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, and stating whether or not they have obtained knowledge of any
such Default existing on the date of such statement and, if so, specifying each
such Default of which the signatory has knowledge and the nature thereof.
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(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable upon
any officer listed in (a) above becoming aware of any Default, Event of Default
or default in the performance of any covenant, agreement or condition contained
in this Indenture, an Officer's Certificate specifying such Default, Event of
Default, default or event of default and what action the Company is taking or
proposes to take with respect thereto and the status thereof.
SECTION 1009. Waiver of Certain Covenants. With respect to the
Securities of any series, the Company may omit in any particular instance to
comply with any covenant or condition specified pursuant to Section 301 as being
subject to this Section 1009, if, before the time for such compliance, the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 1010. Limitations on Liens. The Company shall not
create, assume or suffer to exist any Lien on any of its property or assets,
without securing the Securities of any applicable series equally and ratably
with (or prior to) such secured Indebtedness; provided, however, that the
foregoing shall apply only to Liens which in the aggregate exceed 15% of the
Company's total consolidated assets as of the end of the Company's most recent
accounting period preceding the creation or assumption of any such Lien (reduced
by any Attributable Debt with respect to any Sale and Leaseback Transaction
permitted under Section 1011 below). This restriction will not apply to
Capitalized Leases or to Indebtedness secured by (a) Liens existing on the date
hereof and Liens on property of, or Indebtedness of, any Person at the time such
Person becomes a Subsidiary (whether by acquisition or otherwise, including
through merger or consolidation), (b) Liens in favor of the Company or a
Subsidiary of the Company, (c) Liens existing at the time of acquisition of the
assets secured thereby (including acquisition through merger or consolidation)
and purchase money Liens, and (d) any extension, renewal or refunding of any
Lien referred to in the foregoing clauses (a) through (c), inclusive.
SECTION 1011. Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Principal Property
unless (a) such Sale and Leaseback Transaction involves a lease for a term of
not more than three years; (b) such Sale and Leaseback Transaction is between
the Company and a Subsidiary of the Company or between Subsidiaries of the
Company; (c) the Company or such Restricted Subsidiary would be entitled to
incur indebtedness secured by a Lien on such Principal Property involved in such
Sale and Leaseback Transaction at least equal in amount to the Attributable Debt
with respect to such Sale and Leaseback Transaction pursuant to the first
sentence of the "Limitations on Liens" covenant in Section 1010 above without
equally and ratably securing the Securities of any applicable series pursuant
to such covenant; (d) the proceeds of such Sale and Leaseback Transaction are at
least equal to the fair market value thereof (as determined in good faith by the
Board of Directors of the Company) and the Company applies an amount equal to
the greater of the net proceeds of
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such sale or the Attributable Debt with respect to such Sale and Leaseback
Transaction within 180 days of such sale to either (or a combination) of (i) the
retirement (other than the mandatory retirement, mandatory prepayment or sinking
fund payment or by payment at maturity) of debt for borrowed money of the
Company or a Subsidiary of the Company that matures more than 12 months after
its creation (other than debt that is subordinated to the Securities or debt to
the Company or a Subsidiary of the Company) or (ii) the purchase, construction
or development of other comparable property; or (e) such Sale and Leaseback
Transaction is entered into within 180 days after the initial acquisition by the
Company or such Restricted Subsidiary, as the case may be, of the Principal
Property subject to such Sale and Leaseback Transaction.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. 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 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by an
Officer's Certificate. In case of any redemption at the election of the Company
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed, and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities of any series (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate;
provided that such method complies with the rules of any national securities
exchange or quotation system on which the Securities are then 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, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series.
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The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Euro
Securities shall be outside the United States) where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and
accrued interest, if any,
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(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption
Date or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on this Redemption Date pursuant to
Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered 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 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003)) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. 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 in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price,
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together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of coupons for such interest, and provided
further that, unless otherwise specified as contemplated by Section 301,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered 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 such Holder's 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 Registered Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a temporary global Security or permanent global
Security is so surrendered, such new Security so issued shall be a new temporary
global Security or permanent global Security, respectively. However, if less
than all the Securities of any series with differing issue dates, interest rates
and stated maturities are to be redeemed, the Company in its sole discretion
shall select the particular Securities to be redeemed and shall notify the
Trustee in writing thereof at least 45 days prior to the relevant redemption
date.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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 such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with
Securities. Subject to Section 1203, the Company may, in satisfaction of all or
any part of any mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series to the Trustee
(other than any previously called for redemption or presented for repayment at
the option of the Holder) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been previously purchased or otherwise
acquired or 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, as provided for by the terms
of such Securities together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same 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 so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officer's
Certificate shall specify an
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optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not more than 60 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 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at the Repayment Price thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price of, and (except
if the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid on such
date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be repaid
at the option of the Holder, any Security so providing for such repayment, with
the "Option to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing), must be received by the Company at the Place of Payment therefor
specified in the terms of such Security (or at such other place or places of
which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire Repayment Price of such Security is to be repaid in
accordance with the terms of such Security, the portion of the Repayment Price
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of such Security
surrendered that is not to be repaid, must be specified. Any Security providing
for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the
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minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, unless otherwise specified
as contemplated by Section 301, in the case of Registered Securities,
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
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SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, and of like tenor, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid. If a temporary global
Security or permanent global Security is so surrendered, such new Security so
issued shall be a new temporary global Security or a new permanent global
Security, respectively.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance. If pursuant to Section 301 provision is made for either or
both of (a) defeasance of the Securities of a series under Section 1402 or (b)
covenant defeasance of the Securities of a series under Section 1403, then the
provisions of such Section 1402 or Section 1403, as the case may be, together
with Sections 1404, 1405 and 1406, shall be applicable to the Securities of such
series, and the Company may, at its option by Officer's Certificate, at any
time, with respect to the Securities of such series, elect to have either
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Fourteen.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series and subject to Sections 1405 and 1406, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series and any related coupons on
and after the date the conditions precedent set forth below are satisfied but
subject to satisfaction of the conditions subsequent set forth below
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and any related
coupons, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all their other obligations under such
Securities and any related coupons and this Indenture insofar as such Securities
and any related coupons are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities of such
securities and any related coupons to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any, on) and interest on such
Securities and any related coupons when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1007, and such obligations as shall be
ancillary thereto, (C) the rights, powers, trusts, duties, immunities and other
provisions in respect of the Trustee hereunder and
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(D) this Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to such Securities
and any related coupons. Following a defeasance, payment of the Securities of
such series may not be accelerated because of an Event of Default. Money and
securities held in trust pursuant to this Section 1402 shall not be subject to
Article Sixteen.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under any
Section(s) of this Indenture applicable to such Securities that are determined
pursuant to Section 301 to be subject to this provision with respect to the
Outstanding Securities of such series and any related coupons on and after the
date the conditions precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below (hereinafter,
"covenant defeasance"), and such Securities and any related coupons shall
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such Sections, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities of such
series and any related coupons, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or by reason of reference in any such
Section to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default hereunder, but,
except as specified above, the remainder of this Indenture and such Securities
and any related coupons shall be unaffected thereby. Following a covenant
defeasance, payment of the Securities of such series may not be accelerated
because of an Event of Default solely by reference to such Sections specified
above in this Section 1403.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically noted below,
subsequent, to application of either Section 1402 or Section 1403 to any
Outstanding Securities of or within a series and any related coupons:
(1) The Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to comply
with the provisions of this Article Fourteen applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for the benefit of, and
dedicated solely to, the Holders of such Securities and any related
coupons, (A) Dollars in an amount, or (B) Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, Dollars in an
amount, or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee (or other qualifying trustee), to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (i) each installment of principal of (and
premium, if any, on) and interest on such Outstanding Securities
and any related coupons on the Stated Maturity
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(or Redemption Date, if applicable) of such principal (and premium,
if any) or interest on the day on which such payments are due and
payable in accordance with the terms of this Indenture, the
Securities of such series and the coupons, if any, appertaining
thereto, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any related
coupons on the due dates thereof. Before such a deposit, the Company
may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms
of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing (A) on the date of such deposit or (B) insofar as
paragraphs (4) and (5) of Section 501 are concerned, at any time
during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of
the longest preference period applicable to the Company in respect
of such deposit (it being understood that the condition in this
clause (B) is a condition subsequent and shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in TIA Section 310(b) or otherwise for purposes
of the Trust Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such deposit to
constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(6) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of
execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities of such series and any related
coupons 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.
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(7) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series
and any related coupons 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.
(8) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed in connection therewith pursuant to Section
301.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent and subsequent provided for in this
Indenture relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of the Outstanding Securities of any series and any related coupons
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any related coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any related coupons 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 money or Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof.
Anything in this Article Fourteen 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 (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement. Anything herein to the contrary
notwithstanding, if and to the extent the deposited money or Government
Obligations (or the proceeds thereof) either (i) cannot be applied by the
Trustee or any Paying Agent in accordance with Section 1405 because of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application or (ii) are for any reason insufficient
in amount, then (x) the Company's obligation, if any, to pay principal of and
any
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premium and interest on the Securities of such series and any related coupons
shall be reinstated to the extent necessary to cover the deficiency on any due
date for payment and (y) in the case of a covenant defeasance under Section
1403, the Company's obligation, if any, under any Sections applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision shall be reinstated unless and until all deficiencies on any due date
for payment are covered. In any case specified in clause (i), the Company's
interest in the deposited money and Government Obligations (and proceeds
thereof) shall be reinstated to the extent the Company's payment obligations
are reinstated.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any and all series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the Borough of Manhattan, The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 33 1/3% in aggregate principal amount of
the Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication or mailing of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York or in London for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such
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meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent, waiver, request, demand, notice, authorization, direction
or other action which this Indenture expressly provides may be made, given or
taken by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as
limited by the first paragraph of the proviso to Section 902, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of not less than a specified percentage, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
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(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such consent, waiver, request,
demand, notice, authorization, direction or other action shall be
taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action
has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting of the Holders, each Holder of a Security
of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
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Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of
Securities by his or her acceptance thereof, likewise covenants and agrees, that
the payment of the principal of (and premium, if any) and interest, if any, on
each and all of the Securities is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness.
SECTION 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
holders thereof by a lawful plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities
are entitled to receive any payment upon the principal (or premium,
if any) or interest, if any, on indebtedness evidenced by the
Securities; and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Sixteen shall be paid by
the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or
84
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of
(and premium, if any) and interest on the Senior Indebtedness held
or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be
received by the Trustee or the Holders of the Securities before all
Senior Indebtedness is paid in full, such payment or distribution
shall be paid over, upon written notice to the Trustee, to the
holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instrument evidencing any of such Senior
Indebtedness may have been issued, ratably as aforesaid, for
application to payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Securities shall be paid
in full and no such payments or distributions to the Holders of the Securities
of cash, property or securities otherwise distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities be deemed to be a
payment by the Company to or on account of the Securities. It is understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing
contained in this Article Sixteen or elsewhere in this indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest, if any, on the Securities as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Sixteen, the Trustee, subject to
the provisions of Section 601, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making any distribution to the
Trustee for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and
85
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article
Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness. The Trustee shall not be liable to
any such holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Securities does not file a
proper claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim in
such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for or on
behalf of such Holder of Securities.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 1603. No Payment on Securities in Event of Default on
Senior Indebtedness. No payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall be
made unless full payment of amounts then due for principal (premium, if any),
sinking funds and interest on Senior Indebtedness has been made or duly provided
for in money or money's worth.
SECTION 1604. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 1602 and 1603, payments of principal of (or
premium, if any) or interest, if any, on the Securities or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Securities, unless the Trustee shall have received at its
Corporate Trust Office written notice of any event prohibiting the making of
such payment more than two Business Days prior to the date fixed for such
payment.
SECTION 1605. Authorization of Holders to Trustee to Effect
Subordination. Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1606. Notices to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, neither
the Trustee nor any Paying Agent (other than the Company) shall be charged with
knowledge of the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until the Trustee or such Paying Agent shall have
received (in
86
the case of the Trustee, at its Corporate Trust Office) written notice thereof
from the Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to the Trustee of
such holding of Senior Indebtedness or of the authority of such trustee;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal (or premium,
if any) or interest, if any, on any Security) the Trustee shall not have
received with respect to such moneys the notice provided for in this Section
1606, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it within two Business
Days prior to such date. The Trustee shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such a notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Sixteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1607. Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article Sixteen in respect of any Senior Indebtedness at any time held
by it to the same extent as any other holder of Senior Indebtedness and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
Nothing in this Article Sixteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights under
any instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Securities relating to the subordination thereof.
87
SECTION 1609. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article Sixteen, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Sixteen.
* * * * *
This Indenture 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 Indenture.
88
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
VIACOM INC.,
as Issuer
By:
---------------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Viacom Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
A-1-2
This certificate excepts and does not relate to [U.S.$]
__________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _________, 20__
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
Clearstream IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] ______________principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Viacom Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-2-2
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, 20__
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office, as Operator of the Euroclear
System]
[Clearstream Banking, societe anonyme]
By:
--------------------------------------------
Name:
Title:
EXHIBIT 4.3
VIACOM INC.
AND
_____________________________________________,
Warrant Agent
_________________________
DEBT WARRANT AGREEMENT
____________________________
Providing for the Issuance of
%[Notes/Debentures] Due Purchase Warrants
Dated as of ____________, 20__
WARRANT AGREEMENT
THIS DEBT WARRANT AGREEMENT is entered into as of, 20__ between Viacom
Inc., a corporation incorporated under the laws of Delaware (the "Company") and
_____________________, a ________ incorporated under the laws of ____________
(the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants, each Warrant
entitling the registered owner thereof to purchase ___% [Notes/Debentures] Due
______ of the Company at the price and upon the terms and conditions herein set
forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as
provided in this Agreement; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as provided for in this
Agreement legally valid and binding obligations of the Company with the benefits
and subject to the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration mutually given and
received, the receipt and sufficiency thereof is hereby acknowledged, it is
hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Except as otherwise expressly provided or
unless the context otherwise requires, the terms defined in this Section 1.1
shall for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
The term "Agent" shall mean _____________, a _________ incorporated
under the laws of ____________ or its lawful successors from time to time
appointed in accordance with this Agreement.
The term "Agreement" shall mean this Debt Warrant Agreement between
the Company and the Agent, as such agreement is originally executed or as
it may from time to time be supplemented, modified or amended as provided
herein.
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City of New York or ____________ is neither a legal
holiday nor a day on which banking institutions are authorized by law or
regulation to close.
The term "Company" shall mean Viacom Inc., a Delaware corporation,
until a successor entity shall have become such pursuant to the applicable
provisions of this Agreement and thereafter the term "Company" shall mean
such successor entity.
The term "Event of Default" shall mean any event specified as such in
Section 6.1 hereof. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
The term "Exercise Date" shall mean each date during the Exercise
Period on which [Notes/Debentures] are purchased by a Registered Owner
through the exercise of all or a portion of its Warrants.
The term "Exercise Form" shall mean the form designated Exercise Form
attached as Annex II to each Warrant.
The term "Exercise Period" shall mean the period commencing at 9:00
A.M. (_____ time) on _____________, 20__ and ending at 4:00 P.M. (_________
time) on _____________, _____.
The term "Exercise Price" shall have the meaning accorded such term in
Section 2.1 of this Agreement.
The term "Indenture" shall mean that certain Indenture dated as of
___________, 20__ between the Company and ___________, as trustee, as such
Indenture was originally executed or as it may from time to time be
supplemented, modified or amended in accordance with the terms thereof.
The term "[Notes/Debentures]" means any or all, as the case may be, of
the Company's ___% [Notes/Debentures] Due ___________, authenticated and
delivered as provided in the Indenture.
The term "Notice of Intent to Exercise" shall have the meaning
accorded thereto in Section 4.1 of this Agreement. The form of Notice of
Intent to Exercise is attached as Annex I to each Warrant.
The term "Outstanding" when used with reference to the Warrants shall
mean, as of the date of determination, all Warrants theretofore
authenticated and delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or
delivered to the Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other
Warrants shall have been authenticated and delivered under
this Agreement.
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization, or a government or any agency,
authority or political subdivision thereof.
2
The term "Register" shall mean the books for the registration and
transfer of Warrants which books are kept by the Agent pursuant to Section
3.1 hereof.
The term "Time of Expiry" means 4:00 p.m., _________ time, on
____________, 20__.
The term "Warrantholders" or "Registered Owners" means the persons
from time to time who are registered owners of the Warrants.
The term "Warrantholders' Request" means an instrument signed in one
or more counterparts by the Warrantholders entitled to purchase in the
aggregate not less than a majority of the aggregate principal amount of
[Notes/Debentures] which could be purchased pursuant to all Warrants then
Outstanding requesting the Agent to take some action or proceeding
specified therein.
The term "Warrants" means the ___% [Notes/Debentures] Due 20__
Purchase Warrants issued hereunder pursuant to which Warrantholders have
the right to purchase [Notes/Debentures] on the terms and conditions herein
set forth.
The term "Written Order of the Company" and "Written Consent of the
Company" mean, respectively, a written order or consent signed in the name
of the Company by any one of its officers and may consist of one or more
instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. Issuance And Terms Of Warrants. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than [U.S. $/Specified Currency]_______ in principal amount of the
[Notes/Debentures] is hereby authorized. The Warrants are hereby designated as
the "[Notes/Debentures] Due Purchase Warrants." The Warrants shall be delivered
by the Company to the Agent to be authenticated by the Agent and delivered in
accordance with the Written Order of the Company. The Warrants shall be dated
________, 20__ and shall be issuable in fully registered form and in
denominations that permit the purchase upon exercise of [U.S. $/Specified
Currency]_______ principal amount of [Notes/Debentures] and any integral
multiples thereof.
The Warrants shall be exercisable on any Business Day during the
Exercise Period. Each Warrant in the denomination of [U.S. $/Specified Currency]
shall entitle the Registered Owner thereof to exercise such Warrant in
accordance with and pursuant to the terms thereof for the purchase of a
[Note/Debenture] in the principal amount of [U.S. $/Specified Currency] at par
plus interest accrued thereon from _______________, _______, _____ to but not
including, the Exercise Date (the "Exercise Price").
SECTION 2.2. Form of Warrants. The Warrants shall be in substantially
the form set out in this Section 2.2, with such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement. The Warrants may
3
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
officer executing such Warrants as evidenced by such officer's execution
thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up to
[U.S. $/Specified Currency] ________ in Aggregate Principal Amount of ___%
[Notes/Debentures] Due _________.
This Warrant expires at 4:00 p.m. (_______ time) on [________,
_________] and thereafter will be void and of no value. Notice of the holder's
intent to exercise this Warrant must be given to ________________, as Agent not
later than 4:00 P.M. (________ time) [____________, _____].
VIACOM INC.
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the Registered
Owner hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Debt Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
Viacom Inc. (the "Company") and ______________, as Agent, (the "Agent"), to
purchase at par plus interest accrued thereon, if any, at any time from 9:00
A.M. (___________ time) [____________, _____] to 4:00 P.M. (________ time)
[________________, _____], inclusive (each such date being referred to as an
"Exercise Date") up to [U.S. $/Specified Currency] ___________ in aggregate
principal amount of ___% [Notes/Debentures] Due 0000 (the "[Notes/Debentures]")
of Viacom Inc. (the "Company"), by providing written notice to the Agent of the
Warrantholder's intention to exercise its right to purchase provided for herein
specifying the number of Warrants which the Warrantholder wishes to exercise,
such notice to be provided in the notice form annexed hereto as Annex II not
earlier than 9:00 A.M. (________ time)on [_________________, ____] and not later
than 4:00 P.M. (___________ time) [____________, ___], and by surrendering to
the Agent at its principal office in _____________, ___________ on any Exercise
Date, this Warrant, with the Exercise Form on which this Warrant is exercised,
the [Notes/Debentures] will be delivered as described below against payment
therefor in [U.S. Federal Reserve or other United States/Specified Currency]
funds current and immediately available to the Agent at the amount designated in
the Warrant Agreement, in each case in an amount equal to the purchase price of
the [Notes/Debentures] so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued
under the provisions of the Warrant Agreement. Reference is hereby made for
particulars of the rights of the Warrantholders and of the Company in respect
thereof and the terms and conditions upon which the Warrants are issue and held,
all to the sole effect as if the provisions of the Warrant Agreement were herein
set forth, to all of which the Warrantholder by acceptance hereof assents. The
Company will furnish to the Warrantholder, upon written request and without
charge, a copy
4
of the Warrant Agreement. All capitalized terms not otherwise defined herein,
shall have the meanings ascribed thereto in the Warrant Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this
Warrant will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date.
If [Notes/Debentures] are purchased in an aggregate principal amount
which is less than the total principal amount of the [Note/Debentures] that can
be purchased pursuant to this Warrant, the Warrantholder hereof will be entitled
to receive without charge a new Warrant in respect of the balance of the
principal amounts of [Notes/Debentures] which the Registered Owner hereof was
entitled to purchase under the surrendered Warrant and which were not then
purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
This Warrant is registered on the books of the Company and is
transferable only in accordance with the provisions of the Warrant Agreement by
surrender thereof at the principal office of the Agent duly endorsed or
accompanied by a written instrument of transfer duly executed by the Registered
Owner of this Warrant or its attorney duly authorized in writing all in
accordance with the terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed
in accordance with the laws of New York, without regard to principles of
conflicts of law.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly
executed as of _________________, ___.
VIACOM INC.
By____________________________________
5
Certificate of Authentication
This is one of the Warrants described in the within-mentioned Debt Warrant
Agreement
______________________, as Agent
By______________________________________
Authorized Officer
6
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant
Number______ (the "Warrant") hereby notifies you pursuant to Section 4.1 of the
Debt Warrant Agreement dated as of _______, __ (the "Warrant Agreement") between
Viacom Inc. (the "Company") and [__________, the undersigned], of the
undersigned's intention to exercise _______ of such Warrants on ____________,
____) (the "Exercise Date") to purchase [U.S. $/Specified Currency]
________________ in aggregate principal amount of the Company's ___%
[Notes/Debentures] Due __________________ (the "[Notes/Debentures]") at par plus
interest accrued, if any, from and after [___________, _____]. The purchase
price shall be a total of [U.S. $/Specified Currency] __________ representing
[U.S. $/Specified Currency] _______ in principal and [U.S. $/Specified Currency]
in accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered
to the Agent at its principal office in ________________, ________. Payment of
the purchase price of the [Notes/Debentures] shall be made in [U.S. Federal
Reserve or other United States/Specified Currency funds] immediately available
at the principal office of the Agent on the Exercise Date. The undersigned shall
direct such [Notes/Debentures] be registered and delivered in the name(s) and
the amount(s) set forth opposite the undersigned's name on Annex II to the
Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By_____________________________
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ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the
Warrant attached hereto hereby exercises on _____________, ____ (the "Exercise
Date") Warrants to purchase [U.S. $/Specified Currency] _______ in aggregate
principal amount of VIACOM INC.'s ___% [Notes/Debentures] Due ____________ (the
"[Notes/Debentures]") at par plus $______ in accrued interest on the
[Notes/Debentures] from [_________________, ___], and agrees to transfer on the
Exercise Date in [U.S. $/Specified Currency] funds immediately available to the
Agent (at [account]) such purchase price of the [Notes/Debentures] all in
accordance with the terms and conditions of the Debt Warrant Agreement dated as
of ____________, ____ (the "Warrant Agreement") between VIACOM INC. and
[____________________], as Agent. The undersigned hereby irrevocably directs
that such [Notes/Debentures] be registered and delivered in accordance with the
directions set forth herein.
The undersigned acknowledges that all taxes or other governmental
charges payable upon the registration and delivery of such [Notes/Debentures]
(other than in connection with each original issue and sale of the
[Notes/Debentures]), including any transfer taxes payable if the
[Notes/Debentures] are to be registered in the name of a person or persons other
than the undersigned Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
[NAME OF WARRANTHOLDER]
By_________________________________
Please check box if [Notes/Debentures] are to be delivered at the offices of
_________ on the Exercise Date, failing which the [Notes/Debentures] will be
mailed by certified mail return receipt requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
8
SECTION 2.3. Mutilated, Lost, Destroyed or Stolen Warrants. If (i) any
mutilated Warrant is surrendered to the Agent, or the Company and the Agent
receive evidence to their satisfaction of the destruction, loss or theft of any
Warrant and (ii) there is delivered to the Company and the Agent such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Agent that such Warrant has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, 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 connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 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 Warrants.
SECTION 2.4. Warrantholder Not a Registered Owner of the
[Notes/Debentures]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
SECTION 2.5. Warrants to Rank Pari Passu. All Warrants shall rank pari
passu with each other.
SECTION 2.6. Execution of Warrants. The Warrants shall be signed in
the name and on behalf of the Company by one of its officers. The signature of
the officer executing the Warrants may be manual or facsimile. In case any
officer of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
9
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. Purchase of Warrants by the Company. The Company may
purchase in the market, by private contracts or otherwise all or any portion of
the Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
SECTION 3.1. Register. The Agent, as agent of the Company, shall
maintain, at its principal office in ____________, ____, the Register in which,
subject to such reasonable regulations as it and the Company may prescribe, it
shall provide for the registration of the Warrants and the transfer of Warrants
as in this Agreement provided. The Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. The Registered Owners of the Warrants shall present directly to the Agent
all requests for (a) registration of transfer of Warrants, (b) exchange of
Warrants for new Warrants in authorized denominations and (c) replacement of
Warrants in the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a
list of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
SECTION 3.2. Exchange of Warrants. Warrants entitling the Registered
Owner to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/Debentures].
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
SECTION 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
SECTION 3.4. Registration of Transfer; Restrictions on Transfers. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________, __________ or at any other place that is designated
by the Company as an office
10
for registration of transfer by the Registered Owner or such Registered Owner's
executors, administrators or other legal representatives or attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Agent and upon compliance with such reasonable requirements as the Agent and the
Company may prescribe. Any Warrants tendered for registration of transfer shall
be surrendered to the Agent.
SECTION 3.5. Notice to Warrantholders. Unless herein otherwise
expressly provided, any notice to be given hereunder to Warrantholders shall be
deemed to be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
SECTION 4.1. Method of Exercise of Warrants. The Registered Owner of
any Warrant may exercise the right thereby to purchase [Notes/Debentures] by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its
Warrants, a completed and executed Notice of Intent to Exercise
in the form thereof set forth in Annex I to each Warrant (a "Notice of
Intent to Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise Form
in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
The items described in the foregoing clauses (a) and (b) shall be
deemed received when an actual copy or a facsimile thereof is received by the
Agent. Each Warrant shall be deemed to be surrendered only upon personal
delivery thereof to or, if sent by mail or other means of transmission, upon
receipt thereof by, the Agent at the office specified in this Section 4.1. Each
Warrant shall be deemed exercised as of the first Business Day on which all of
the foregoing conditions are satisfied with respect to such Warrant. The first
day on which the Warrants may be exercised is ________________, ____________,
___. The Company acknowledges that the Registered Owners of the Warrants are not
required under any circumstances to take any other actions in order to exercise
their Warrants.
SECTION 4.2. Effect of Exercise of Warrants. Upon surrender and
payment of the Exercise Price by the Registered Owner of any Warrant in
accordance with Section 4.1, the
11
[Notes/Debentures] so purchased shall be deemed to have been issued and the
person or persons to whom such [Notes/Debentures] are to be issued shall be
deemed to have become the Registered Owner or owners of such [Notes/Debentures]
on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of [Notes/Debentures] not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
SECTION 4.3. Partial Exercise of Warrants. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase (Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a principal amount of
[Notes/Debentures] less than the principal amount which can be purchased
pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior
to the Time of Expiry shall, in addition, be entitled to receive forthwith a new
Warrant in respect of the balance of the principal amount of [Notes/Debentures]
which such Registered Owner was entitled to purchase pursuant to the surrendered
Warrant and which were not then exercised. The Company shall not be responsible
for any taxes which may be payable in connection with the issuance of such new
Warrant.
SECTION 4.4. Expiration of Warrants. After the Time of Expiry, all
rights under any Warrant in respect of which the right of purchase herein and
therein provided for shall not theretofore have been exercised pursuant to
Section 4.1 shall cease and terminate and such Warrant shall become void and of
no effect and all rights of the Registered Owner thereof under this Warrant
Agreement shall cease and terminate as of such termination; provided that such
Registered Owner's rights under this Warrant Agreement with respect to actions
occurring prior to such termination shall remain in full force. After the Time
of Expiry, each Registered Owner of any Warrants shall return any unexercised
Warrants to the Agent for cancelation in accordance with Section 4.5 of this
Agreement.
SECTION 4.5. Cancellation of Surrendered Warrants. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of [Notes/Debentures] which could have been purchased pursuant
to each.
SECTION 4.6. Accounting and Recording. The Agent shall forthwith
account and remit to the Company with respect to Warrants exercised and
immediately forward to the Company (or into an account or accounts of the
Company with the bank or trust company designated by the Company for that
purpose) all monies received by the Agent on the purchase of [Notes/Debentures]
through the exercise of Warrants. All such monies, and any [Notes/Debentures] or
other instruments, from time to time received by the Agent shall be
12
received in trust for, and shall be segregated and kept apart by the Agent in
trust for, the Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price
and the number of [Notes/Debentures] reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
SECTION 5.1. Issuance of [Notes/Debentures]. The Company covenants
that so long as any Warrants remain Outstanding it will cause the
[Notes/Debentures] from time to time paid for pursuant to the Warrants in the
manner herein provided to be duly issued and delivered in accordance with the
Warrants and the terms hereof.
SECTION 5.2. Corporate Existence of the Company; Consolidation,
Merger, Sale or Transfer. The Company covenants that so long as any of the
Warrants are Outstanding, it will maintain its existence, will not dissolve,
sell or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving , resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
SECTION 5.3. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange of Warrants. So long as any of the Warrants shall remain
Outstanding, the Company covenants that it will maintain an office or agency in
_________, where the Warrants may be presented for registration, exchange and
transfer as in this Agreement provided, and where notices and demands to or upon
the Company in respect of the Warrants or of this Agreement may be served, and
where the Warrants may be presented for exchange for [Notes/Debentures] as
provided herein.
SECTION 5.4. Appointment to Fill a Vacancy in the Office of Agent. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default. The term "Event of Default" whenever
used herein with respect to any Warrant shall mean any one of the following
events:
(a) Failure by the Company to deliver the [Notes/Debentures] in
exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform in any
material respect any of the covenants or agreements on its part in the
Warrants or in this Agreement specifically contained for the benefit of
the Warrantholders, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Agent, or to the
Company and the Agent by the Registered Owners of not less than 25% in
principal amount of the Warrants at the time Outstanding under this
Agreement a written notice specifying such failure and stating that such is
a "Notice of Default" hereunder.
SECTION 6.2. Suits by Warrantholders. All or any of the rights
conferred upon the Registered Owner of any Warrant by the terms of such Warrant
and/or this Agreement may be enforced by the Registered Owner of such Warrants
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Agent to proceed in its own name to enforce each and
all of the provisions herein contained for the benefit of the Registered Owners
of the Warrants from time to time Outstanding.
SECTION 6.3. Remedies Not Waived; Enforcement Expense. No delay or
failure on the part of the Registered Owners of Warrants or the Agent to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such Registered Owner's or Agent's, as the case may be, rights, powers
and remedies. The Company agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by a Registered Owner in
enforcing or attempting to enforce its rights thereunder and hereunder following
the occurrence and during the continuance of any Event of Default hereunder,
whether the same shall be enforced by suit or otherwise.
SECTION 6.4. Incorporators, Stockholders, Officers and Directors of
Company are Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of this Agreement, or of any Warrant, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
14
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the obligations hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
SECTION 7.1. Amendments Without Consent of Registered Owners of
Warrants. This Agreement and the terms and conditions of the Warrants may be
amended by the Company and the Agent, without the consent of any Registered
Owner of Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of the
Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the Company,
(c) to cure any ambiguity or correcting or supplementing any provision
contained herein or in the Warrants which may be defective or inconsistent
with any other provisions contained herein or in the Warrants,
(d) if deemed appropriate by the Company or required by law, to
evidence the permitted succession of another corporation to the Company and
the assumption by such successor of the covenants and obligations of the
Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or questions
arising under this Agreement or the Warrants which shall not adversely
affect the interests of the Registered Owners of the Warrants in any
material respect.
SECTION 7.2. Amendments with Consent of Registered Owners of Warrants.
This Agreement, the terms and conditions of the Warrants and the covenants
contained in either may also be modified or amended by the Company and the Agent
and past defaults thereunder or future compliance therewith by the Company may
be waived either with the written consent of the Registered Owners of not less
than a majority in aggregate principal amount of the [Notes/Debentures] at the
time outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the aggregate principal amount of the [Notes/Debentures] at the
time outstanding are present or represented, of a resolution by the Registered
Owners of not less than 75% in aggregate principal amount of the Outstanding
Warrants present or represented at the meeting; provided that no such
modification, amendment or waiver may, without the consent or affirmative vote
of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver [Notes/Debentures] in
exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise
Dates or the Expiry Date with respect to any Warrant, or change the coin or
currency in which any Warrant is
15
exercisable for [Notes/Debentures] or impair the right to institute suit
for the enforcement of any rights of any Registered Owner of a Warrant or
(b) Reduce the percentage in principal amount of the Outstanding
Warrants, the consent of which Registered Owners is required for any
modification or amendment to this Agreement or to the terms and conditions
of or covenants contained in this Agreement or in the Warrants or for any
waiver of compliance therewith or
(c) modify any of the provisions of this Section 7.2 except to provide
that certain other provisions of this Agreement or the terms and conditions
of the Warrants cannot be modified, amended or waived without the consent
of the Registered Owner of each Outstanding Warrant affected thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
SECTION 7.3. Binding Nature of Amendments; Notice. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
ARTICLE VIII
MEETINGS
SECTION 8.1. Meetings of Registered Owners of Warrants. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or the Warrants to be
made, given or taken by Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of
Warrants for any purpose specified herein to be held at such time and at such
place in ______ or __________ as the Agent shall determine. Notice of every
meeting of Registered Owners of Warrants, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, by mail to each registered Owner at its address as it
appears on the Register, not less than 21 nor more than [45] days prior to the
date fixed for the meeting. In
16
case at any time the Company or the Registered Owners of at least 25% in
aggregate principal amount of the Outstanding Warrants shall have requested the
Agent to call a meeting of the Registered Owners of Warrants for any purpose, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Agent shall not have mailed notice of such meeting
within 14 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Registered Owners of Warrants in the amount previously specified, as the case
may be, may determine the time and the place in _______ or for such meeting and
may call such meeting for such purposes by giving notice thereof as provided
herein.
To be entitled to vote at any meeting of Registered Owners of
Warrants, a Person shall be a registered Owner of Outstanding Warrants. The
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Warrants shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of the Registered Owners of Warrants, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 5
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 5 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in this Section 8.1 with respect to an original meeting,
except that such notice need be given only once not less than 3 days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of the
principal amount of the Outstanding Warrants which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Warrants shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Any meeting of
Registered Owners of Warrants at which a quorum is present may be adjourned from
time to time by a vote as hereinafter provided in this Section 8.1, and the
meeting may be held as so adjourned without further notice. At a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid,
any resolution and all matters shall be effectively passed or decided if passed
or decided by persons entitled to vote the lesser of (a) a majority in aggregate
principal amount of Outstanding Warrants or (b) 75% in aggregate principal
amount of Outstanding Warrants represented and voting at such meeting.
The Agent may make such reasonable regulations as it may deem
advisable for any meeting of Registered Owners of Warrants in regard to proof of
the holding of Warrants and such other matters concerning the conduct of the
meeting as it shall deem appropriate. The Agent shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or Registered Owners of Warrants as provided
herein, in which case the Company or the Registered Owners calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and permanent secretary of the meeting shall be elected by
note of the persons entitled to vote a majority in aggregate principal amount of
the Outstanding Warrants represented at the meeting. The chairman of the meeting
shall have no right to vote, except as a Holder of Warrants.
17
SECTION 8.2. Record of Meetings. A record, at least in triplicate, of
the proceedings of each meeting of Registered Owners of Warrants shall be
prepared, and one such copy shall be delivered to the Company and the Agent. The
copy delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
SECTION 9.1. Appointment of Agent. The Company hereby appoints, at
present having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
SECTION 9.2. Acceptance of Appointment By Agent; Limitations of Duties
of Agent. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed upon with
the Company for all services rendered by it, and the Company agrees
promptly to pay such compensation and to reimburse the Agent for its
reasonable out-of-pocket expenses (including, without limitation, the
reasonable compensation of its counsel) incurred by it in connection with
the services rendered by it hereunder. The Company also agrees to indemnify
the Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with its acting as such Agent hereunder, including the
costs and expenses of defending against any claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and does
not assume any obligations or relationship of agency or trust for or with
any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may also be
counsel to the Company), and, in the absence of bad faith, the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in the good faith
reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company
reasonably believed by the Agent to be genuine and to have been signed by
the proper persons.
18
(e) The Agent and its officers, directors and employees may become the
owner of, or acquire any interest in, any Warrants, with the same rights
that it or they would have if it were not the Agent hereunder, may engage
or be interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or body
of Registered Owners of the Warrants or holders of other obligations of the
Company as freely as if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in the
Agent's certificates of authentication) shall be taken as the statements of
the Company, and the Agent assumes no responsibility for their correctness.
The Agent makes no representation as to the validity or sufficiency of this
Agreement or the Warrants, provided that the Agent shall not be relieved of
its duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the Company of
the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only such
duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 9.3. Agent Required. The Company agrees that, until all
Warrants (i) shall have been delivered to the Agent for cancellation or (ii)
have become null and void because of the passage of the Expiry Date, there shall
at all times be a Agent hereunder which shall be a corporation doing business in
the United States and which alone or with its affiliates has a combined capital
and surplus of at least $[___,000,000].
SECTION 9.4. Resignation and Removal of Agent; Appointment of
Successor. The Agent may at any time resign by giving written notice (in
accordance with Section 10.1 hereof) to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be less than [90] days
after the receipt of such notice by the Company unless the Company agrees to
accept less notice. Upon receipt of such notice of resignation, the Company
shall promptly act to appoint a successor Agent. The Agent may be removed at any
time by the Company by delivering written notice thereof specifying such removal
and the date when it is intended to become effective. Any resignation or removal
of the Agent shall take effect upon the date of the appointment by the Company
as hereinafter provided of a successor and the acceptance of such appointment by
such successor.
In case at any time the Agent shall resign, or shall be removed, or
shall become incapable of acting or shall be adjudged as bankrupt or insolvent,
or if a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its
19
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor agent, eligible as aforesaid, shall be appointed by the
Company.
Upon the appointment as aforesaid of a successor agent and acceptance
by it of such appointment, the Agent so superseded shall cease to be the Agent
hereunder. If no successor Agent shall have been so appointed by the Company and
shall have accepted appointment as hereinafter provided, then the Registered
Owners of a majority in aggregate principal amount of the Outstanding Warrants,
on such Holders' behalf and on behalf of all others similarly situated may
petition any court of competent jurisdiction for the appointment of a successor
Agent.
Any successor Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
SECTION 9.5. Merger, Conversion, Consolidation or Succession to
Business of Agent. Any corporation into which the 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 the Agent shall be a
party, or any corporation succeeding to all or substantially all the assets and
business of the Agent, shall be the successor to the Agent hereunder, provided
such corporation shall be otherwise eligible under this Article VII, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered,
by the Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Agent may adopt such authentication and
deliver the Warrants so authenticated with the same effect as if such successor
Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. All notices or demands hereunder upon the
Company or the Agent may be electronically communicated or hand delivered or
sent by overnight courier, addressed to any party hereto as provided in this
Section 10.1.
All communications intended for the Company shall be sent to:
20
Viacom Inc.
1515 Broadway
New York, NY 10036
Attention:
Fax Number: (212) ___________
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a day on which commercial banks are
open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
SECTION 10.2. Day Not a Business Day. If any date on which a payment
is to be made, notice given or other action taken hereunder is not a Business
Day, then such payments, notice or other action shall be made, given or taken on
the next succeeding business day in such place, and in the case of any payment,
no interest shall accrue for the delay.
SECTION 10.3. Currency. All amounts herein are expressed in [United
States Dollars/Specified Currency].
SECTION 10.4. Governing Law. This Agreement and the Warrants shall be
construed in accordance with the laws of New York, without regard to principles
of conflicts of law.
21
SECTION 10.5. Limitation of Rights to Parties and Registered Owners of
Warrants. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
SECTION 10.6. Separability of Invalid Provisions. In case any one or
more of the provisions contained in this Agreement or in the Warrants shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 10.7. No Waiver of Rights. A failure or delay in exercising
any right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
SECTION 10.8. Execution in Several Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 10.9. Article and Section Headings. The headings or titles of
the several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
SECTION 10.10. Successor and Assigns. All the covenants and agreements
in this Agreement contained by or on behalf of the Company or the Agent shall
bind their respective successors and assigns, whether so expressed or not.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
VIACOM INC.
By_________________________________
AGENT NAME, as Agent
By_________________________________
23
- --------------------------------------------------------------------------------
VIACOM INC.
STANDARD PREFERRED STOCK WARRANT
AGREEMENT PROVISIONS
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Article 1
---------
Issuance, Execution and Delivery of Warrant Certificates
--------------------------------------------------------
Section 1.1 Issuance of Warrant Certificates.............................................................1
Section 1.2 Execution and Delivery of Warrant Certificates...............................................2
Section 1.3 Registration and Countersignature............................................................3
Article 2
---------
Warrant Price, Duration and Exercise of Warrant Certificates
------------------------------------------------------------
Section 2.1 Warrant Price................................................................................4
Section 2.2 Duration of Warrant Certificates.............................................................4
Section 2.3 Exercise of Warrant Certificates.............................................................5
Article 3
---------
Other Provisions Relating to Rights of Holders of Warrant Certificates
----------------------------------------------------------------------
Section 3.1 No Rights as Securityholders Conferred by Warrant Certificates...............................7
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates....................................7
Section 3.3 Holder of Warrant Certificate May Enforce Rights.............................................8
Section 3.4 Call of Warrants by the Company..............................................................8
Section 3.5 Optional Reduction of Warrant Price..........................................................9
Section 3.6 Reservation of Shares........................................................................9
Section 3.7 Obtaining of Governmental Approvals and Stock Exchange Listings.............................10
Section 3.8 Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants........................................................................11
Section 3.9 Fractional Warrants and Fractional Shares...................................................16
Section 3.10 Notices to Warrantholders..................................................................17
i
Article 4
---------
Exchange and Transfer of Warrant Certificates
---------------------------------------------
Section 4.1 Exchange and Transfer.......................................................................19
Section 4.2 Treatment of Holders of Warrant Certificates................................................21
Section 4.3 Cancellation of Warrant Certificates........................................................21
Article 5
---------
Concerning the Warrant Agent
----------------------------
Section 5.1 Warrant Agent...............................................................................21
Section 5.2 Conditions of Warrant Agent's Obligations...................................................22
Section 5.3 Registration and Appointment of Successor Warrant Agent.....................................25
Article 6
---------
Miscellaneous
-------------
Section 6.1 Supplements and Amendments..................................................................28
Section 6.2 Notices and Demands to the Company and Warrant Agent........................................28
Section 6.3 Addresses...................................................................................28
Section 6.4 Delivery of Prospectus......................................................................29
Section 6.5 Obtaining of Governmental Approvals.........................................................29
Section 6.6 Persons Having Rights under Warrant Agreement...............................................29
Section 6.7 Headings....................................................................................30
Section 6.8 Counterparts................................................................................30
Section 6.9 Inspection of Agreement.....................................................................30
Section 6.10 Governing Law..............................................................................30
Section 6.11 Successors.................................................................................30
Section 6.12 Termination................................................................................30
ii
From time to time, Viacom Inc., a Delaware corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase shares of the Company's
Preferred Stock, $0.01 par value ("Shares"). The standard provisions set forth
herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case may
be, terms defined in the Warrant Agreement are used herein as therein defined
and terms defined herein are used in the Warrant Agreement as herein defined.
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. Each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase such numbers of Shares as are set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of
the Board of Directors of the Company or any duly authorized committee thereof
or established in one or more warrant agreements supplemental hereto, prior to
the issuance of any Warrants: the designation of such Warrants; if the Warrants
are issued together as a unit with any other securities of the Company, the date
after which the Warrants shall be freely tradable separately from such other
securities
(the "Distribution Date"); if the Company may at its option or under
circumstances described therein provide for an earlier Distribution Date; the
expiration date, pursuant to Section 2.2; the exercise price and any form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4; the limitations, if any, upon the
Reduced Warrant Price and the Reduced Warrant Price Period, pursuant to Section
3.5; the circumstances, if any, under which the Exercise Price and the number of
Shares purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment and the manner of making any such
adjustment.
Section 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, and in
each case shall be dated as of the date of issuance thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the Warrant Certificate may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with (i)
any law or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, its Chief
Operating Officer, its President, its Chief Financial Officer, a Vice President
or its Treasurer and attested by its Secretary or Assistant Secretary. Such
2
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly delivered hereunder.
If any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered to the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company. Any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such persons was not an officer.
Section 1.3 Registration and Countersignature. The Warrant
Agent shall, upon receipt of Warrant Certificates, duly executed on behalf of
the Company, countersign the Warrant Certificates evidencing Warrants to
purchase the number of Shares set forth in the Warrant Agreement and shall
deliver such Warrant Certificates to the appropriate person or
3
entity upon the order of the Company. After the original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for, or in
connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided. The Warrant
Certificates shall not be valid for any purpose unless so countersigned.
The Warrant Agent's countersignature on all Warrants shall be
in substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_________________________________
Authorized Signatory
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES
Section 2.1 Warrant Price. The exercise price of each Warrant
and any other form of consideration other than lawful money of the United States
of America by which the exercise price may be paid shall be as set forth in the
Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Shares upon exercise of the Warrants is referred to in
this Agreement as the "Warrant Price" and is payable in full at the time of
exercise.
Section 2.2 Duration of Warrant Certificates. Warrant
Certificates may be exercised in whole at any time, and in part from time to
time, during the period set forth in the Warrant Agent (the "Expiration Date").
Each Warrant Certificate not exercised on or before the
4
close of business on the Expiration Date shall become void, and all rights of
the holder thereunder and under this Agreement shall cease.
Section 2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Shares as to which the Warrant Certificate is
exercised, to the Warrant Agent at its corporate trust office at the address set
forth in the Warrant Agreement. The payment must specify the name of the holder
and the number of Warrants exercised by such holder. Warrants will be deemed to
have been exercised upon receipt by the Warrant Agent of the Warrant Price and
the Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the
Company. In either case, the Warrant Agent shall advise the Company by telex or
telecopy at the end of each day as to the Warrant Certificates
5
that have been exercised and the amount of moneys deposited to its account or
the type and amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is entitled
upon such exercise, (iii) delivery of Warrant Certificates evidencing the
balance, if any, of the Warrants remaining after such exercise and (iv) such
other information as the Company shall reasonably require.
(c) As soon as practicable after receipt of payment of the
Warrant Price and the Warrant Certificate properly completed and duly executed
at the corporate trust office of the Warrant Agent, the Company shall issue or
deliver, upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as maybe directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant
Certificate evidencing the number of Warrants remaining unexercised shall be
issued if sufficient time remains prior to the Expiration Date.
(d) The Company will pay all documentary stamp taxes attributable to the initial
issuance of Warrants and of Shares upon the exercise of Warrants; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Shares in a name other than the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such certificates unless
or
6
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.1 No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a stockholder of the Company, including the right to receive the
payment of dividends on or vote the Shares.
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of such security or
indemnity as may be required by them to save each of them harmless, and, in the
case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen
or destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and for a like number of Warrants. Upon the issuance of any new
Warrant Certificate 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 expense (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and
7
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) any and all
other rights or remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
Section 3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the holder of any
Shares or the holder of any other Warrant Certificate, may, in his or her own
behalf and for his or her own benefit, enforce, and may institute and maintain
any action or proceeding against the Company to enforce or otherwise in respect
of, his or her right to exercise his or her Warrant Certificate in the manner
provided in his or her Warrant Certificate and in his or her Agreement.
Section 3.4 Call of Warrants by the Company. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be established
from time to time in or pursuant to the Warrant Agreement before the issuance of
such Warrants, or to resolutions of the Board of Directors of the Company.
Notice of such Call Price, Call Date and Call Terms shall be given to registered
holders of Warrants in writing by the Company or the Warrant Agent.
8
Section 3.5 Optional Reduction of Warrant Price. Subject to
the limits, if any, established from time to time by the Board of Directors of
the Company or in the Warrant Agreement, the Company shall have the right, at
any time or from time to time, voluntarily to reduce the then current Warrant
Price to such amount (the "Reduced Warrant Price") and for such period or
periods of time, which may be through the close of business on the Expiration
Date (the "Reduced Warrant Price Period"), as may be deemed appropriate by the
Board of Directors of the Company. Notice of any such Reduced Warrant Price and
Reduced Warrant Price Period shall be given to registered holders of Warrants in
writing by the Company or the Warrant Agent. After the termination of the
Reduced Warrant Price Period, the Warrant Price shall be such Warrant Price that
would have been in effect had there been no reduction in the Warrant Price
pursuant to the provisions of this Section 3.5.
Section 3.6 Reservation of Shares. For the purpose of enabling it
to satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Preferred Stock, the number of
Shares deliverable upon the exercise of all outstanding Warrants, and the
transfer agent for the shares is hereby irrevocably authorized and directed at
all times to reserve such number of authorized and unissued or treasury shares
of Preferred Stock as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding
9
Warrants, and the Company will supply such transfer agent with duly executed
stock certificates for such purpose.
Before taking any action that would cause an adjustment
pursuant to Section 3.7 reducing the Exercise Price below the then par value (if
any) of the Shares issuable upon exercise of the Warrants, the Company will take
any corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of
the Warrants will, upon issuance in accordance with the terms of this Agreement,
be fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
Section 3.7 Obtaining of Governmental Approvals and Stock
Exchange Listings. So long as any Warrants remain outstanding, the Company will
take all necessary steps (a) to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and to make
filings under federal and state securities acts and laws, which may be or become
requisite in connection with the issuance, sale, transfer and delivery of the
Warrant Certificates, the exercise of the Warrants and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of Warrants, and (b) to
have the shares of Stock immediately upon their issuance upon exercise of
Warrants, (i) listed on each national securities exchange on which the Preferred
Stock is then listed or (ii) if the Preferred Stock is not then listed on any
national securities exchange, listed for quotation on the NASD Automated
Quotations System ("Nasdaq")
10
National Market ("Nasdaq National Market") or such other over-the-counter
quotation system on which the Stock may then be listed.
Section 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 3.8.
(a) If the Company shall (i) pay a dividend on its capital
stock (including Preferred Stock in shares of Stock, (ii) subdivide its
outstanding shares of Preferred Stock (iii) combine its outstanding shares of
Preferred Stock into smaller number of shares of Preferred Stock or (iv) issue
any shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of Shares or other securities of the Company which such holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Preferred Stock (except as provided in paragraph (a)
above or paragraph (h) below), any holder of Warrants upon exercise thereof
shall be entitled to receive, in lieu of the Preferred Stock to
11
which he or she would have become entitled upon exercise immediately prior to
such reorganization or reclassification, the shares (of any class or classes) or
other securities or property of the Company that he or she would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 3.8
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Warrant Price between or among shares
of classes of capital stock), to the end that this Section 3.8 (including the
adjustments of the number of shares of Preferred Stock or other securities
purchasable and the Warrant Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof,
no adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%)in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one- hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to
12
issue additional Warrants in substitution for an adjustment in the number of
Shares as provided in paragraph (f), the Exercise Price payable upon exercise of
each Warrant shall be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction, of which the numerator shall be the
number of Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of
Stock" shall mean (i) the class of stock designated as the Preferred Stock of
the Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, of from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter the number of such other shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraphs (a) through
(d), inclusive, above, and the provisions of Section 2.1, 2.2, 2.3, 3.6, 3.7(a)
and 3.10, with respect to the Shares, shall apply on like terms to any such
other shares.
(f) The Company may elect, on or after the date of any
adjustment required by paragraphs (a) through (b) of this Section 3.8, to adjust
the number of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of shares as immediately prior to such adjustment. Each Warrant held
of
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record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Warrant Price in effect prior to adjustment of the Warrant Price by the
Warrant Price in effect after adjustment of the Warrant Price. The Company shall
notify the holders of Warrants in the same manner as provided in the first
paragraph of Section 3.10, of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (f) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to Section
3.9, the additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1.3 and Article 4 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(g) Except as provided in paragraph (a) of this Section 3.8,
no adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of
14
the property of the Company as an entirety or substantially as
an entirety, the Company or such successor or purchasing corporation, as the
case may be, shall execute with the Warrant Agent an agreement that each holder
of a Warrant shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
or she would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3.8. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness or any
provisions contained in any such agreement relating either to the kind or amount
of shares of stock or other securities or property receivable upon exercise of
Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any
such agreement.
(i) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
15
Section 3.9 Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates or
to distribute Warrant Certificates that evidence fractional Warrants. In lieu of
such fractional Warrants, there shall be paid to the registered holder of the
Warrant Certificates with regard to which such fractional Warrants would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a full Warrant. For purposes of this Section 3.9, the
current market value of a Warrant shall be the closing price of one Warrant (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date on which such fractional Warrant would have been otherwise
issuable.
(b) Notwithstanding any adjustment pursuant to this Section
3.9 in the number of Shares purchasable upon the exercise of a Warrant, the
Company shall not be required to issue fractions of Shares upon exercise of the
Warrants or to distribute certificates which evidence fractional Shares. In lieu
of fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Preferred Stock. For purposes of this Section 3.9, the
current market value of a share of Preferred Stock shall be the closing price of
a share of Preferred Stock (as determined pursuant to paragraph (c) below) for
the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale
price, regular way, or, if no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting
16
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Warrants or Stock, as the case may be, is not listed
or admitted to trading on such exchange, as reported on the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Warrants or Preferred
Stock, respectively, is listed or admitted to trading, or if the Warrants or
Preferred Stock, as the case may be, is not listed or admitted to trading on any
national securities exchange, as reported on Nasdaq National Market or, if the
Warrants or Stock, as the case may be, is not listed or admitted to trading on
the Nasdaq National Market, as reported on Nasdaq.
Section 3.10 Notices to Warrantholders. Upon any adjustment of
the number of Shares purchasable upon exercise of each Warrant, the Warrant
Price or the number of Warrants outstanding, the Company within 20 calendar days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a
firm of independent public accountants of recognized standing selected by the
Company (who may be the regular auditors of the Company) setting forth the
Warrant Price and either the number of Shares purchasable upon exercise of each
Warrant or the additional number of Warrants to be issued for each previously
outstanding Warrant, as the case may be, after such adjustment and setting forth
in reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register written notice of such adjustments by first
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the other
provisions of this Section 3.10.
17
The Company shall cause written notice of any later
Distribution Date, any later Expiration Date, any Call Price, Call Date and
Call Terms and any Reduced Exercise Price and Reduced Exercise Price Period, as
the case may be, to be given as soon as practicable to the Warrant Agent and to
each of the registered holders of the Warrant Certificates by first class mail,
postage prepaid, at such holder's address appearing on the Warrant Register. In
addition to the written notice referred to in the preceding sentence, the
Company shall make a public announcement in a daily morning newspaper of general
circulation in New York City of such earlier Distribution Date, such later
Expiration Date, such Call Price, Call Date and Call Terms and such Reduced
Exercise Price and Reduced Exercise Price Period, as the case may be, at least
once prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Preferred Stock or make any
distribution (other than a cash dividend) to the holders of is
shares of Preferred Stock, or
(b) the Company shall offer to the holders of its shares of
Preferred Stock any additional shares of Preferred Stock or
securities convertible into shares of Preferred Stock or any right
to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation, merger
or sale of all or substantially all of its property, assets and
business as an entirety),
18
the Company shall cause written notice of such event to be
filed with the Warrant Agent and shall cause written notice of such
event to be given to each of the registered holders of the Warrant
Certificates as such holder's address appearing on the Warrant
Register, by first class mail, postage prepaid, and make a
public announcement in a daily newspaper of general circulation in
New York City of such event, such giving of notice and publication
to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a
record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be.
The failure to give the notice required by this Section 3.10 or any
defect therein shall not affect the legality or validity of any
distribution, right, warrant, dissolution, liquidation or winding up
or the vote upon or any other action taken in connection therewith.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.1 Exchange and Transfer. Upon surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants and the transfer of Warrants may be registered in whole
or in part; provided that such other Warrant Certificates shall evidence the
same aggregate number of Warrants as the Warrant Certificates surrendered for
exchange or
19
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly completed and duly endorsed and duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed (under the Medallion Program) by (a) a bank or trust company, (b) a
broker or dealer that is a member of the Nasdaq or (c) a member of a national
securities exchange and accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to
the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but the Company
may require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are surrendered for
exchange or registration of transfer, an authorized officer of the Warrant Agent
shall mutually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificate duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificates surrendered for
such exchange or registration of transfer.
20
Section 4.2 Treatment of Holders of Warrant Certificates.
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that, until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section 4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time, or otherwise dispose of, canceled Warrant Certificates in manner
satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority
21
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
Section 5.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following (to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it
will take any corporate action that may be reasonably necessary in
order to fulfill its obligations under this Agreement, and the
Warrant Certificates, and that it will not take any action that
would materially impair its ability to perform its obligations under
this Agreement and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and
to reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including reasonable counsel fees) incurred by the Warrant Agent in
connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as the Warrant Agent
hereunder, as well as the reasonable costs and expenses of defending
against any claim of liability in the premises.
22
(c) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the
Warrant Agent is acting solely as an agent of the Company, and the
Warrant Agent does not assume any obligation or relationship of
agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the opinion of such 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
accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers,
directors and employees may buy, sell or deal in any of the Shares
or other securities of the Company and may become the owner of, or
acquire any interest in, any Warrant Certificates, with the same
rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, they may
engage or be interested in any financial or other transaction with
the Company and may act on, or as depositary, trustee or agent for,
any committee or body of holders of the Shares or other obligations
of the Company as freely as if it were not the Warrant Agent.
23
(g) No Liability for Interest. Except as set forth in the
Warrant Agreement, the Warrant Agent shall not be under any
liability for interest on any moneys or other consideration at any
time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement
or any of the Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except the Warrant
Agent shall be responsible for any representations of the Warrant
Agent herein and for its countersignature on the Warrant
Certificates), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth, but no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application or
by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have not duty or responsibility in case of any
default by the Company in the
24
performance of its covenants or agreements contained in the Warrant
Certificates or in the case of the receipt of any written demand
from a holder or a Warrant Certificate with respect to such default,
including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demands
upon the Company.
(k) Instructions. The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer,
the Secretary or any Assistant Secretary of the Company, and to
apply to such officers for advice or instructions in connection with
its duties, and shall not be liable for any action taken or suffered
to be taken by it in good faith in accordance with instructions of
any such officer or in good faith reliance upon any statement signed
by any one of such officer of the Company with respect to any fact
or matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively
proved and established by such signed statement.
Section 5.3 Registration and Appointment of Successor Warrant
Agent.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that at all times there shall be a
Warrant Agent hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The
25
Warrant Agent may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company organized and
doing business under the laws of the United States of America or of any State,
in good standing, and authorized under such laws to exercise corporate trust
powers) and the acceptance of such appointment by such successor Warrant Agent.
Upon its resignation or removal, the Warrant Agent shall be entitled to the
payment by the Company of the compensation agreed to under Section 5.2(b) hereof
for, and to the reimbursement of all reasonable out-of-pocket expenses incurred
in connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance
26
with the terms of this Agreement, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be the Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that is shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
27
ARTICLE 6
MISCELLANEOUS
Section 6.1 Supplements and Amendments. This Agreement may be
amended or supplemented from time to time by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein, or in regard to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable,
provided such action shall not adversely affect the interest of the holders of
the Warrant Certificates.
Section 6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 6.3 Addresses. Any communication to the Warrant Agent
with respect to this Agreement shall be addressed to the address set forth in
the Warrant Agreement, and any such communication to the Company shall be
addressed to the Company at the following address:
Viacom Inc.
1515 Broadway
New York, New York 10036
Attention: [ ]
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
28
Section 6.4 Delivery of Prospectus. If the Company is required
under applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the Shares issued
upon such exercise, a copy of the prospectus.
Section 6.5 Obtaining of Governmental Approvals. The Company
will from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Shares issued upon exercise of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
Section 6.6 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates, any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
29
Section 6.7 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.8 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 6.9 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
Section 6.10 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
Section 6.11 Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 6.12 Termination. This Agreement shall terminate at
the close of business on the Expiration Date. Notwithstanding the foregoing,
this Agreement will terminate on any earlier date when the Warrants have been
exercised.
30
EXHIBIT 5.1
December 26, 2000
Board of Directors
Viacom Inc.
1515 Broadway
New York, NY 10036
Viacom Inc.
Ladies and Gentlemen:
We have acted as counsel for Viacom Inc. (the "Company") in
connection with the preparation of a registration statement on Form S-3 (the
"Registration Statement") being filed with the Securities and Exchange
Commission (the "Commission") relating to the offering from time to time,
pursuant to Rule 415 of the General Rules and Regulations of the Commission
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
of the following securities of the Company with an aggregate offering price of
up to $5,000,000,000 or the equivalent thereof in one or more foreign
currencies: (i) senior debt securities (the "Senior Debt") and senior
subordinated debt securities (the "Senior Subordinated Debt", and together with
the Senior Debt, the "Debt Securities"); (ii) preferred stock (the "Preferred
Stock"); (iii) warrants to purchase Debt Securities or Preferred Stock (the
"Warrants"); and (iv) common stock (the "Common Stock") which may be issued upon
conversion of the Debt Securities or Preferred Stock. The Debt Securities, the
Warrants, the Preferred Stock and the Common Stock are collectively referred to
as the "Securities".
The Senior Debt will be issued in one or more series pursuant
to a senior indenture (the "Senior Indenture") to be entered into between the
Company and The Bank of New York, as trustee (the "Senior Trustee"). The Senior
Subordinated Debt will be issued in one or more series pursuant to a senior
subordinated indenture (the "Senior Subordinated Indenture") to be entered into
between the Company and The Bank of New York, as trustee (the "Senior
Subordinated Trustee"). The Warrants will be issued under one or more debt
warrant agreements (each, a "Warrant Agreement"), each to be entered into
between the Company and a financial institution identified therein as the
warrant agent (each, a "Warrant Agent").
In our capacity as counsel to the Company we have examined (i)
the Registration Statement, (ii) the form of Senior Indenture filed as an
exhibit to the Registration Statement, (iii) the form of Senior Subordinated
Indenture filed as an exhibit to the Registration Statement, (iv) the form of
Warrant Agreement filed as an exhibit to the Registration Statement and (v) the
originals, or copies identified to our satisfaction, of such corporate records
of Viacom, certificates of public officials, officers of Viacom, and other
persons, and such other documents,
agreements and instruments as we have deemed necessary as a basis for the
opinions hereinafter expressed.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of Viacom and others.
Our opinions set forth below are limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States and we do not express any opinion herein
concerning any other laws.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Senior Indenture has been duly authorized and, when
duly executed and delivered by the Company and duly authorized, executed and
delivered by the Senior Trustee, the Senior Indenture will constitute a valid
and legally binding obligation of the Company enforceable against the Company in
accordance with its terms.
2. The Senior Debt has been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii) the Senior
Debt has been duly executed by the Company and authenticated by the Senior
Trustee in accordance with the Senior Indenture and delivered to and paid for by
the purchasers thereof, the Senior Debt will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with the terms thereof and will be entitled to the benefits of the Senior
Indenture.
3. The Senior Subordinated Indenture has been duly authorized
and, when duly executed and delivered by the Company and duly authorized,
executed and delivered by the Senior Subordinated Trustee, the Senior
Subordinated Indenture will constitute a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms.
4. The Senior Subordinated Debt has been duly authorized and,
when (i) the final terms thereof have been duly established and approved and
(ii) the Senior Subordinated Debt has been duly executed by the Company and
authenticated by the Senior Subordinated Trustee in accordance with the Senior
Subordinated Indenture and delivered to and paid for by the purchasers thereof,
the Senior Subordinated Debt will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
the terms thereof and will be entitled to the benefits of the Senior
Subordinated Indenture.
5. The Warrant Agreements have been duly authorized and, when
duly executed and delivered by the Company and duly authorized, executed and
delivered by the applicable
2
Warrant Agent, the Warrant Agreements will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their respective terms.
6. The Warrants have been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii)
certificates representing the Warrants have been duly executed by the Company
and countersigned by the applicable Warrant Agent in accordance with the
applicable Warrant Agreement and delivered to and paid for by the purchasers
thereof, the Warrants will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with the terms thereof
and will be entitled to the benefits of the applicable Warrant Agreement.
7. The Preferred Stock has been duly authorized and, (i) when
the final terms thereof have been duly established and approved (ii)
certificates representing the Preferred Stock have been duly executed by the
Company and delivered to and paid for by the purchasers thereof and (iii) all
corporate action necessary for issuance of the Preferred Stock has been taken,
including the adoption of a Certificate of Designations relating thereto, the
Preferred Stock will be validly issued, fully paid and non-assessable.
8. The Common Stock has been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii)
certificates representing the Common Stock have been duly executed by the
Company and delivered to and paid for by the purchasers thereof, the Common
Stock will be validly issued, fully paid and non-assessable.
The opinions set forth in paragraphs 1. through 6. above are
subject, as to enforcement, to (i) bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (iii)
provisions of law that require that a judgment for money damages rendered by a
court in the United States be expressed only in United States dollars.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus.
Very truly yours,
SHEARMAN & STERLING
3
EXHIBIT 12.1
VIACOM INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions, except ratios)
HISTORICAL
-------------------------------------------------------------------------------------------
Nine Months Year Ended December 31,
Ended -------------------------------------------------------------------
September 30,2000 1999 1998 1997 1996 1995
------------------ ---- ---- ---- ---- ----
Earnings (loss) before income taxes $183.4 $843.9 $137.3 $1,178.5 $410.1 $442.7
Add:
Interest expense 577.4 461.0 631.2 790.7 839.7 864.4
Capitalized interest amortized 2.2 5.7 11.5 4.1 5.9 10.5
1/3 of rental expense 222.0 213.8 186.8 225.0 178.4 166.9
Adjustment for fifty-
percent-owned affiliates 25.1 (49.0) (51.5) (178.1) 23.6 30.3
Preferred stock dividends-
majority owned subsidiaries 0.0 0.0 0.0 0.0 0.0 0.3
------------------ -------------------------------------------------------------------
Adjusted Earnings $1,010.1 $1,475.4 $915.3 $2,024.2 $1,457.7 $1,515.1
================== ===================================================================
Fixed charges:
Interest expense $577.4 $461.0 $631.2 $791.7 $844.2 $876.3
1/3 of rental expenses 222.0 213.8 186.8 225.0 178.4 166.9
Preferred stock dividends-
majority owned subsidiaries 0.0 0.0 0.0 0.0 0.0 0.3
------------------ -------------------------------------------------------------------
Total fixed charges $799.4 $674.8 $818.0 $1,016.7 $1,022.6 $1,043.5
================== ===================================================================
Ratio of earnings to fixed charges 1.3x 2.2x 1.1x 2.0x 1.4x 1.5x
================== ===================================================================
PRO FORMA
----------------------------------------------------------------------------
Nine Months
Ended Year Ended
September 30,2000 December 31, 1999
------------------------------------ ----------------------------------
Pro Forma for Pro Forma for Pro Forma for Pro Forma for
Viacom/CBS Infinity Viacom/CBS Infinity
Merger Merger Merger Merger
----------------- -------------- -------------- --------------
Earnings (loss) before income taxes $140.0 ($16.0) $670.0 $461.0
Add:
Interest expense 765.9 765.9 890.6 890.6
Capitalized interest amortized 2.2 2.2 5.7 5.7
Adjustment for fifty-
percent-owned affiliates 25.1 25.1 (49.0) (49.0)
1/3 of rental expense 253.7 253.7 260.7 260.7
----------------- -------------- -------------- --------------
Adjusted Earnings $1,186.9 $1,030.9 $1,778.0 $1,569.0
================= ============== ============== ==============
Fixed charges:
Interest expense $765.9 $765.9 $890.6 $890.6
40
1/3 of rental expenses $253.7 $253.7 $260.7 $260.7
----------------- -------------- -------------- --------------
Total fixed charges $1,019.6 $1,019.6 $1,151.3 $1,151.3
================= ============== ============== ==============
Ratio of earnings to fixed charges 1.2x 1.0x 1.5x 1.4x
================= ============== ============== ==============
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of Viacom Inc. of our report dated February
10, 2000, except for the second and third paragraphs of note 2, which are as of
March 21, 2000 relating to the financial statements and financial statement
schedules, which appears in Viacom Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1999. We also consent to the references to us under the
headings "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
New York, New York
December 21, 2000
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 25, 2000, except as
to note 20, which is as of March 21, 2000, appearing on page 30 of CBS
Corporation's Form 10-K for the year ended December 31, 1999; and our report
dated March 21, 2000, appearing on page 67 of CBS Corporation's Form 10-K for
the year ended December 31, 1999; incorporated by reference in this registration
statement of Viacom Inc. and the reference to our firm under the heading
"Experts" in this registration statement.
KPMG LLP
New York, New York
December 20, 2000
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 25, 2000, except as
to note 17, which is as of March 21, 2000, appearing on page 26 of Infinity
Broadcasting Corporation's Form 10-K for the year ended December 31, 1999; and
our report dated March 21, 2000, appearing on page 51 of Infinity Broadcasting
Corporation's Form 10-K for the year ended December 31, 1999; incorporated by
reference in this registration statement of Viacom Inc. and the reference to our
firm under the heading "Experts" in this registration statement.
KPMG LLP
New York, New York
December 20, 2000
1
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of VIACOM
INC. (the "Company") hereby constitutes and appoints Michael D. Fricklas and
Mark C. Morril and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign (1) a
registration statement or statements on Form S-3, or such other form as may be
recommended by counsel, to be filed with the Securities and Exchange Commission
(the "Commission"), and any and all amendments and post-effective amendments
thereto, and any and all post-effective amendments to registration statements or
statements on Form S-3 previously filed with the Commission, and supplements to
the Prospectus contained therein, and any and all instruments and documents
filed as a part of or in connection with the said registration statements or
amendments thereto or supplements or amendments to such Prospectus, covering, in
each case, the offering and issuance of debt securities of Viacom Inc. and (2)
any registration statements, reports and applications relating to such
securities to be filed by the Company with the Commission and/or any national
securities exchanges under the Securities Exchange Act of 1934, as amended, and
any and all amendments thereto, and any and all instruments and documents filed
as part of or in connection with such registration statements or reports or
amendments thereto; granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully for all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that the said
attorney-in-fact and agent, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th day of
December, 2000.
/s/ GEORGE S. ABRAMS
---------------------------
George S. Abrams
/s/ DAVID R. ANDELMAN
---------------------------
David R. Andelman
/s/ GEORGE H. CONRADES
---------------------------
George H. Conrades
/s/ PHILIPPE P. DAUMAN
---------------------------
Philippe P. Dauman
/s/ WILLIAM H. GRAY III
---------------------------
William H. Gray III
/s/ MEL KARMAZIN
---------------------------
Mel Karmazin
/s/ JAN LESCHLY
---------------------------
Jan Leschly
/s/ DAVID T. MCLAUGHLIN
---------------------------
David T. McLaughlin
/s/ LESLIE MOONVES
---------------------------
Leslie Moonves
/s/ BRENT D. REDSTONE
---------------------------
Brent D. Redstone
/s/ SHARI REDSTONE
---------------------------
Shari Redstone
/s/ FREDERIC V. SALERNO
---------------------------
Frederic V. Salerno
/s/ WILLIAM SCHWARTZ
---------------------------
William Schwartz
/s/ IVAN SEIDENBERG
---------------------------
Ivan Seidenberg
/s/ PATTY STONESIFER
---------------------------
Patty Stonesifer
/s/ ROBERT D. WALTER
---------------------------
Robert D. Walter
EXHIBIT 25.1
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
VIACOM INC.
(Exact name of obligor as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1515 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip code)
_____________
Senior Subordinated Debt Securities
(Title of the indenture securities)
========================================================================
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------
Name Address
- --------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 21st day of December, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT
EXHIBIT 25.2
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
VIACOM INC.
(Exact name of obligor as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1515 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip code)
-------------
Senior Debt Securities
(Title of the indenture securities)
========================================================================
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- ------------------------------------------------------------
Name Address
- ------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 21st day of December, 2000.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT