As filed with the Securities and Exchange Commission on July 13, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
VIACOM INC. VIACOM INTERNATIONAL INC.
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
Delaware Delaware
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
04-2949533 13-3844753
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1515 Broadway 1515 Broadway
New York, NY 10036 New York, NY 10036
(212) 258-6000 (212) 258-6000
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of Registrants' principal including area code, of Registrants' principal
executive offices) 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: Upon
consummation of the Exchange Offer described herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered registered Per Security Offering Price(1) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
6.40% senior notes due 2006 $400,000,000 100% $400,000,000
6.625% senior notes due 2011 $1,000,000,000 100% $1,000,000,000
6.40% senior notes due 2006 $3,075,000 100% $3,075,000
7.70% senior notes due 2010 $1,000,000 100% $1,000,000 $351,068.75(2)
7.875% senior debentures due 2030 $200,000 100% $200,000
Guarantees of all senior securities --- --- ---
- -----------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
(2) Calculated based upon the market value of the securities to be received by
the registrants in the exchange in accordance with Rule 457(f). Pursuant to
Rule 457(n), no registration fee will be paid in connection with the
guarantees. $1,068.75 of the currently due registration fee has been
previously paid in connection with the filing of Registration Statement
No. 333-54626 on January 30, 2001 and is offset against the currently due
registration fee pursuant to Rule 457(p).
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.
================================================================================
EXPLANATORY NOTE
This registration statement contains two separate prospectuses.
The first prospectus relates to an offer to exchange (i) the
unregistered 6.40% senior notes due 2006 ($400,000,000 aggregate principal
amount outstanding) which were issued on May 17, 2001 for an equal amount of
6.40% senior notes due 2006 which have been registered under the Securities Act
of 1933, and (ii) the unregistered 6.625% senior notes due 2011 ($1,000,000,000
aggregate principal amount outstanding) which were issued on May 17, 2001 for an
equal amount of 6.625% senior notes due 2011 which have been registered under
the Securities Act of 1933.
The second prospectus relates to an offer to exchange (i) the remaining
unregistered 6.40% senior notes due 2006 ($3,075,000 aggregate principal amount
outstanding) which were issued January 17, 2001 for an equal amount of 6.40%
senior notes due 2006 which have been registered under the Securities Act of
1933, (ii) the remaining unregistered 7.70% senior notes due 2010 ($1,000,000
aggregate principal amount outstanding) for an equal amount of 7.70% senior
notes due 2010 which have been registered under the Securities Act of 1933 and
(iii) the remaining unregistered 7.875% senior debentures due 2030 ($200,000
aggregate principal amount outstanding) for an equal amount of 7.875% senior
debentures due 2030 which have been registered under the Securities Act of 1933.
Pursuant to a registered exchange offer consummated on March 19, 2001,
additional unregistered senior securities issued on January 17, 2001 were
exchanged, and $396,925,000 registered 6.40% senior notes due 2006, $499,000,000
registered 7.70% senior notes due 2010 and $749,800,000 registered 7.875% senior
debentures due 2030 are currently outstanding.
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 or sale is not permitted.
Subject to completion dated July 13, 2001
VIACOM INC.
OFFER TO EXCHANGE
6.40% Senior Notes due 2006
($400,000,000 aggregate principal amount issued May 17, 2001)
for
6.40% Senior Notes due 2006
that have been registered under the Securities Act of 1933
and
6.625% Senior Notes due 2011
($1,000,000,000 aggregate principal amount issued May 17, 2001)
for
6.625% Senior Notes due 2011
that have been registered under the Securities Act of 1933
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
TERMS OF EXCHANGE OFFER
o The exchange offer will expire at 5:00 p.m., New York City time, on ,
2001, unless we extend the offer.
o Tenders of outstanding unregistered senior securities may be withdrawn at
any time before 5:00 p.m. on the date of expiration of the exchange offer.
o All outstanding unregistered senior securities that are validly tendered
and not validly withdrawn will be exchanged.
o The terms of the exchange senior securities to be issued are substantially
similar to the unregistered senior securities, except for being registered
under the Securities Act of 1933 and not having any transfer restrictions,
registration rights or rights to additional interest.
o The exchange of senior securities will not be a taxable exchange for U.S.
federal income tax purposes.
o We will not receive any proceeds from the exchange offer.
o Application has been made to list the exchange senior securities on the
Luxembourg Stock Exchange.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the senior securities to be
distributed in the exchange offer, nor have any of these organizations
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is , 2001
Each holder of an unregistered senior security wishing to accept the
exchange offer must deliver the unregistered senior securities to be exchanged,
together with the letter of transmittal that accompanies this prospectus and any
other required documentation, to the exchange agent identified in this
prospectus. Alternatively, you may effect a tender of unregistered senior
securities by book-entry transfer into the exchange agent's account at Euroclear
Bank S.A./N.A., as operator of the Euroclear System ("Euroclear"), Clearstream
Banking, societe anonyme, Luxembourg ("Clearstream Luxembourg") or The
Depository Trust Company ("DTC"). All deliveries are at the risk of the holder.
You can find detailed instructions concerning delivery in the section called
"The Exchange Offer" in this prospectus and in the accompanying letter of
transmittal.
---------------
If you are a broker-dealer that receives exchange senior securities for
your own account you must acknowledge that you will deliver a prospectus in
connection with any resale of the exchange senior securities. The letter of
transmittal accompanying this prospectus states that by so acknowledging and by
delivering a prospectus, you will not be deemed to admit that you are an
"underwriter" within the meaning of the Securities Act. You may use this
prospectus, as we may amend or supplement it in the future, for your resales of
exchange senior securities. We will make this prospectus available to any
broker-dealer for use in connection with any such resale for a period of 180
days after the date of expiration of this exchange offer.
You should rely only on the information contained in or incorporated by
reference in this prospectus. Neither we nor Viacom International has authorized
anyone to provide you with different or additional information. If anyone
provides you with different or additional information, you should not rely on
it. You should assume that the information contained or incorporated by
reference in this prospectus is accurate only as of the date of this prospectus
or the date of the document incorporated by reference. Our business, financial
condition, results of operations and prospects may have changed since then.
Neither we nor Viacom International is making an offer of the senior securities
in any jurisdiction where the offer is not permitted.
TABLE OF CONTENTS
Page
----
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS...................ii
WHERE YOU CAN FIND MORE INFORMATION..........................................iv
PROSPECTUS SUMMARY............................................................1
SUMMARY OF THE EXCHANGE OFFER.................................................3
SUMMARY DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES.........................8
CAPITALIZATION...............................................................10
SUMMARY HISTORICAL FINANCIAL DATA............................................11
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION...................12
RATIO OF EARNINGS TO FIXED CHARGES...........................................13
USE OF PROCEEDS..............................................................14
THE EXCHANGE OFFER...........................................................15
DESCRIPTION OF SENIOR SECURITIES.............................................28
UNITED STATES TAX CONSIDERATIONS.............................................44
PLAN OF DISTRIBUTION.........................................................49
LEGAL MATTERS................................................................50
EXPERTS......................................................................50
---------------
References to "Viacom," "we," "us" and "our" in this prospectus are
references to Viacom Inc. References to "Viacom International" are references to
Viacom International Inc. References to "$" and "dollars" are to United States
dollars.
Whenever we refer in this prospectus to the 6.40% senior notes due 2006
issued on May 17, 2001 or the 6.625% senior notes due 2011 issued on May 17,
2001, we will refer to them as the "unregistered 2006 senior notes" or the
"unregistered 2011 senior notes", respectively, and collectively as the
"unregistered senior securities". Whenever we refer in this prospectus to the
registered 6.40% senior notes due 2006 or the registered 6.625% senior notes due
2011, we will refer to them as the "exchange 2006 senior notes" or the "exchange
2011 senior notes", respectively, and collectively as the "exchange senior
securities". The unregistered 2006 senior notes and the exchange 2006 senior
notes are collectively referred to as the "2006 senior notes" and the
unregistered 2011 senior notes and the exchange 2011 senior notes are
collectively referred to as the "2011 senior notes". The unregistered senior
securities and the exchange senior securities are collectively referred to as
the "senior securities".
i
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into this
prospectus contain both historical and forward-looking statements. All
statements other than statements of historical fact are, or may be deemed to be,
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Securities Exchange Act of 1934. These
forward-looking statements are not based on historical facts, but rather reflect
our current expectations concerning future results and events. These
forward-looking statements generally can be identified by the use of statements
that include phrases such as "believe," "expect," "anticipate," "intend,"
"plan," "foresee," "likely," "will" or other similar words or phrases.
Similarly, statements that describe our objectives, plans or goals are or may be
forward-looking statements. These forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance or achievements to be different from any future results,
performance and achievements expressed or implied by these statements. You
should review carefully all information, including the financial statements and
the notes to the financial statements, included or incorporated by reference
into this prospectus.
The following important factors, among others, could affect our future
results, causing these results to differ materially from those expressed in our
forward-looking statements:
o We derive substantial revenues from the sale of advertising time on
our over-the-air networks, basic cable networks, television stations,
radio stations and outdoor businesses. The advertising market has
recently experienced softness. The sale of advertising time is
affected by viewer demographics, viewer ratings and market conditions
for advertising time. Adverse changes to any of these factors could
have a negative effect on revenues.
o Operating results derived from our motion picture and television
production fluctuate depending primarily upon cost of such productions
and acceptance of such productions by the public, which are difficult
to predict. Motion picture and television production has experienced
cycles in which increased costs of talent and other factors have
resulted in higher production costs. In addition, the commercial
success of our motion picture and television productions also depends
upon the quality and acceptance of other competing productions, and
the availability of alternative forms of entertainment and leisure
time activities.
o Our operating results also fluctuate due to the timing and
availability of theatrical and home video releases, as well as a
result of the recording of license fees for television exhibition of
motion pictures and for syndication and basic cable exhibition of
television programming in the period that the products are available
for such exhibition.
o Our basic cable network and premium subscription television networks
are dependent on affiliation agreements with cable and direct
broadcast satellite distributors on acceptable terms. The loss of
carriage on such distributors, or continued carriage on less favorable
terms, could adversely affect, with respect to basic cable networks,
revenues from subscribers fees and the ability to sell advertising
time, and with respect to premium subscription television networks,
subscribers fee revenues.
o Some of our businesses are seasonal. More specifically, the home video
business and consumer publishing business are subject to increased
periods of demand coinciding with summer and winter holidays, while a
substantial majority of the theme parks operating income is generated
from May through September. In addition, the home video and theme
parks businesses' revenues are influenced by weather.
ii
o Changes in FCC laws and regulations could, directly or indirectly,
adversely affect the operations and ownership of our properties.
o We have contingent liabilities related to discontinued operations,
including environmental liabilities and pending litigation. While
there can be no assurance in this regard, the pending or potential
litigation, environmental and other liabilities should not have a
material adverse effect on us.
o We may be adversely affected by changes in technology and its effect
on competition in our markets.
o Labor agreements covering the services of actors whom we utilize in
our motion picture and television businesses are currently scheduled
to expire during 2001. Work stoppages and/or higher costs in
connection with these agreements could adversely impact our ability to
produce or acquire new programming.
o Other economic, business, competitive and/or regulatory factors
affecting our businesses generally.
These factors are not necessarily all of the important factors that
could cause actual results to differ materially from those expressed in any of
our forward-looking statements. Other unknown or unpredictable factors also
could have material adverse effects on our future results. The forward-looking
statements included in this prospectus are made only as of the date of this
prospectus and under Section 27A of the Securities Act and Section 21E of the
Exchange Act and we do not have any obligation to publicly update any
forward-looking statements to reflect subsequent events or circumstances. We
cannot assure you that projected results or events will be achieved.
iii
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 we file at
the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site 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 also is available at the New York
Stock Exchange. In accordance with U.S. securities laws, Viacom International is
not obligated to file annual, quarterly and current reports, proxy statements
and other information with the SEC. Accordingly, Viacom International does not
file separate financial statements with the SEC and does not independently
publish its financial statements. Viacom International's financial condition,
results of operations and cash flows are consolidated into the financial
statements of Viacom.
We are "incorporating by reference" specified documents that we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents that are considered part of this prospectus.
Later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 by us until the exchange offer is
completed.
o Our Annual Report on Form 10-K for the year ended December 31,
2000.
o Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2001.
o 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 January
5, 2001, January 8, 2001, February 15, 2001, February 21, 2001,
May 30, 2001, June 1, 2001 and July 3, 2001.
o Our definitive Proxy Statement dated April 16, 2001.
o CBS Corporation Annual Report on Form 10-K for the year ended
December 31, 1999, as amended on April 28, 2000.
o The consolidated financial statements of Infinity Broadcasting
Corporation, as set forth in Item 8 and the notes thereto to
Infinity's Annual Report on Form 10-K for the year ended December
31, 1999.
o The condensed 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.
o Our Registration Statement on Form S-4 dated January 12, 2001.
iv
You may obtain a copy of these filings at no cost, by writing or
telephoning us at the following address:
Viacom Inc.
1515 Broadway
52nd Floor
New York, New York 10036
Attn: Investor Relations
Telephone Number: (212) 258-6000
In addition, copies of all documents that we incorporate into this
prospectus by reference may be obtained free of charge at the offices of
Kredietbank S.A. Luxembourgeoise, 43, Boulevard Royal, L-2955 Luxembourg, our
Luxembourg paying and transfer agent.
v
PROSPECTUS SUMMARY
The following summary highlights selected information from this
prospectus and does not contain all of the information that you should consider
before participating in this exchange offer. You should read the entire
prospectus, accompanying letter of transmittal and documents incorporated by
reference carefully.
THE COMPANY
We, together with our subsidiaries, are a diversified worldwide
entertainment company with operations in six segments: Cable Networks,
Television, Infinity, Entertainment, Video and Publishing. 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 NETWORK,TM CMT:
COUNTRY MUSIC TELEVISIONTM and BET: BLACK ENTERTAINMENT TELEVISION(R), among
other program services. The Television segment consists of CBS(R) and UPN(R)
television networks, 39 owned broadcast television stations and Viacom's
television production and syndication business, including KING WORLD
PRODUCTIONS(TM) and PARAMOUNT TELEVISION(TM). The Infinity segment operates
approximately 184 radio stations through INFINITY BROADCASTING(R) and outdoor
advertising properties through INFINITY OUTDOOR(TM) and TDI(R). The
Entertainment segment includes PARAMOUNT PICTURES(R), which produces and
distributes theatrical motion pictures; PARAMOUNT PARKS(R), which owns and
operates five theme parks and a themed attraction in the United States and
Canada; and movie theater and music publishing operations. The Video segment
consists of an approximately 82% equity interest in Blockbuster Inc., which
operates and franchises BLOCKBUSTER(R) video stores worldwide. 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(TM),
SCRIBNER(R) and THE FREE PRESS(TM). We were organized under the laws of the
State of Delaware in 1986. Viacom's principal offices are located at 1515
Broadway, New York, New York 10036 and our telephone number is (212) 258-6000.
THE GUARANTOR
Viacom International, the guarantor of the senior securities, was
organized under the laws of the State of Delaware in 1995 and has its corporate
headquarters at 1515 Broadway, New York, New York 10036. Viacom International
has 100 shares of common stock outstanding, all of which are held by Viacom. The
operating assets of Viacom International and its subsidiaries include MTV: MUSIC
TELEVISION(R), SHOWTIME(R), NICKELODEON(R), NICK AT NITE(R), VH1 MUSIC FIRST(R),
TV LAND(R), approximately 18 broadcast television stations, all interests in the
businesses of the Video, Entertainment and Publishing segments and certain
related Internet sites.
1
CERTAIN SUBSIDIARIES
Viacom has one subsidiary, Blockbuster, Inc., which is subject to the
reporting requirements of the Exchange Act. Blockbuster, incorporated under the
laws of the State of Delaware in 1989, has its corporate headquarters at 1201
Elm Street, Dallas, Texas 75270. As of March 31, 2001, Blockbuster had
31,014,696 shares of Class A common stock and 144,000,000 shares of Class B
common stock outstanding. Blockbuster is a retailer of rentable home
videocassettes, DVDs and video games, and has stores throughout the United
States and in many other countries. Blockbuster operates primarily under the
Blockbuster brand name. Blockbuster's financial condition, results of operations
and cash flows are consolidated into the financial statements of Viacom. We own
all of Blockbuster's Class B common stock representing an approximately 82%
equity interest in Blockbuster.
RECENT DEVELOPMENTS
As a result of Viacom's merger with CBS Corporation on May 4, 2000,
Viacom acquired an approximate 64.2% equity interest in Infinity Broadcasting
Corporation. On February 21, 2001, Infinity merged with and into a wholly owned
subsidiary of Viacom. In connection with the Viacom/Infinity merger, Viacom
issued 0.592 of a share of its Class B common stock for each issued and
outstanding share of Infinity Class A common stock resulting in the issuance of
approximately 232 million shares of Viacom Class B common stock.
On November 3, 2000, Viacom announced an agreement to acquire BET
Holdings II, Inc., which operates the BET: BLACK ENTERTAINMENT TELEVISION(R)
cable networks. On January 23, 2001, we completed our acquisition of BET for a
total purchase price of approximately $3.0 billion, which principally represents
the issuance of approximately 43.4 million shares of Viacom Class B common stock
and the assumption by Viacom of approximately $590 million in debt.
2
SUMMARY OF THE EXCHANGE OFFER
On May 17, 2001, we issued $400 million aggregate principal amount of
unregistered 6.40% senior notes due 2006 and $1 billion aggregate principal
amount of unregistered 6.625% senior notes due 2011. The unregistered senior
securities are unconditionally guaranteed as to payment of principal and
interest by Viacom International. On the same day, we and the initial purchasers
of the unregistered senior securities entered into a registration rights
agreement in which we agreed that you, as a holder of unregistered senior
securities, would be entitled to exchange your unregistered senior securities
for exchange senior securities registered under the Securities Act but otherwise
having substantially identical terms to the unregistered senior securities. This
exchange offer is intended to satisfy these rights. After the exchange offer is
completed, you will no longer be entitled to any registration rights with
respect to your senior securities. The exchange senior securities will be our
obligations and will be entitled to the benefits of the indenture and
supplemental indentures relating to the unregistered senior securities. The
exchange senior securities will also be unconditionally guaranteed as to payment
of principal and interest by Viacom International. The form and terms of the
exchange senior securities are identical in all material respects to the form
and terms of unregistered senior securities, except:
o the exchange senior securities have been registered under the Securities
Act, and therefore will contain no restrictive legends;
o the exchange senior securities will not have registration rights; and
o the exchange senior securities will not have rights to additional interest.
For additional information on the terms of the exchange offer, see "The
Exchange Offer."
The Exchange Offer............... We are offering to exchange $1,000 principal
amount of:
o 6.40% senior notes due 2006 which
have been registered under the
Securities Act of 1933 for each
$1,000 principal amount of our
outstanding unregistered 2006
senior notes that were issued on
May 17, 2001. As of the date of
this prospectus, $400 million in
aggregate principal amount of our
unregistered 2006 senior notes are
outstanding;
o 6.625% senior notes due 2011 which
have been registered under the
Securities Act of 1933 for each
$1,000 principal amount of our
outstanding unregistered 2011
senior notes that were issued on
May 17, 2001. As of the date of
this prospectus, $1 billion in
aggregate principal amount of our
unregistered 2011 senior notes are
outstanding.
Expiration of Exchange
Offer......................... The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2001, unless we
decide to extend the expiration date.
3
Conditions of the Exchange
Offer......................... We will not be required to accept for
exchange any unregistered senior securities,
and we may amend or terminate the exchange
offer if any of the following conditions or
events occurs:
o the exchange offer, or the making
of any exchange by a senior
security holder, violates
applicable law or any applicable
interpretation of the staff of the
SEC;
o any action or proceeding shall have
been instituted or threatened with
respect to the exchange offer
which, in our judgment or the
judgment of Viacom International,
would impair our ability to proceed
with the exchange offer; and
o any law, rule or regulation or
applicable interpretations of the
staff of the SEC have been issued
or promulgated which, in our good
faith determination or the good
faith determination of Viacom
International, does not permit us
to effect the exchange offer.
We will give oral or written notice of any
non-acceptance, amendment or termination to
the registered holders of the unregistered
senior securities as promptly as
practicable. We reserve the right to waive
any conditions of the exchange offer.
Resale of Exchange Senior
Securities.................... Based on interpretative letters of the SEC
staff to third parties unrelated to us, we
believe that you can resell and transfer the
exchange senior securities you receive
pursuant to this exchange offer, without
compliance with the registration and
prospectus delivery provisions of the
Securities Act, provided that:
o any exchange senior securities to
be received by you will be acquired
in the ordinary course of your
business;
o you are not engaged in, do not
intend to engage in and have no
arrangement or understanding with
any person to participate in the
distribution of the unregistered
senior securities or exchange
senior securities;
o you are not an "affiliate" (as
defined in Rule 405 under the
Securities Act) of Viacom or Viacom
International or, if you are such
an affiliate, you will comply with
the registration and prospectus
delivery requirements of the
Securities Act to the extent
applicable;
o if you are a broker-dealer, you
have not entered into any
arrangement or understanding with
Viacom or Viacom International or
any "affiliate" of Viacom or Viacom
International (within the meaning
of Rule 405 under the Securities
Act) to distribute the exchange
4
senior securities;
o if you are a broker-dealer, you
will receive exchange senior
securities for your own account in
exchange for unregistered senior
securities that were acquired as a
result of market-making activities
or other trading activities and
that you will deliver a prospectus
in connection with any resale of
such exchange senior securities;
and
o you are not acting on behalf of any
person or entity that could not
truthfully make these
representations.
If you wish to accept the exchange offer,
you must represent to us that these
conditions have been met.
If our belief is inaccurate and you transfer
any exchange senior security without
delivering a prospectus meeting the
requirements of the Securities Act or
without an exemption from registration under
the Securities Act, you may incur liability
under the Securities Act. We do not assume
or indemnify you against such liability, but
we do not believe that any such liability
should exist.
Accrued Interest on the
Exchange Senior Securities
and Unregistered Senior
Securities.................... The exchange senior securities will accrue
interest from the date interest was last
paid on the unregistered senior securities.
If no interest was paid on your unregistered
senior securities, your exchange senior
securities will accrue interest from and
including May 17, 2001. We will pay interest
on the exchange 2006 senior notes
semi-annually on January 30 and July 30 of
each year. We will pay interest on the
exchange 2011 senior notes semi-annually on
May 15 and November 15 of each year.
Holders of unregistered senior securities
that are accepted for exchange will be
deemed to have waived the right to receive
any payment in respect of interest accrued
from the date of the last interest payment
date that was made in respect of the
unregistered senior securities until the
date of the issuance of the exchange senior
securities. Consequently, holders of
exchange senior securities will receive the
same interest payments that they would have
received had they not accepted the exchange
offer.
Procedures for Tendering
Unregistered Senior
Securities.................... If you wish to participate in the exchange
offer, you must transmit a properly
completed and signed letter of transmittal,
and all other documents required by the
letter of transmittal, to the exchange agent
at the address set forth in the letter of
5
transmittal. These materials must be
received by the exchange agent before 5:00
p.m., New York City time, on , 2001, the
expiration date of the exchange offer. You
must also provide:
o a confirmation of any book-entry
transfer of unregistered senior
securities tendered electronically
into the exchange agent's account
with DTC, Euroclear or Clearstream
Luxembourg. You must comply with
DTC's, Euroclear's or Clearstream
Luxembourg's respective standard
operating procedures for electronic
tenders, by which you will agree to
be bound in the letter of
transmittal; or
o physical delivery of your
unregistered senior securities to
the exchange agent's address as set
forth in the letter of transmittal.
The letter of transmittal must also contain
the representations you must make to us as
described under "The Exchange
Offer--Procedures for Tendering."
Special Procedures for
Beneficial Owners............. If you are a beneficial owner of
unregistered senior securities that are held
through a broker, dealer, commercial bank,
trust company or other nominee and you wish
to tender such unregistered senior
securities, you should contact the person
promptly and instruct the person to tender
your unregistered senior securities on your
behalf.
Guaranteed Delivery
Procedures for
Unregistered Senior
Securities.................... If you cannot meet the expiration deadline,
or you cannot deliver your unregistered
senior securities, the letter of transmittal
or any other required documentation, or
comply with DTC's, Euroclear's or
Clearstream Luxembourg's respective standard
operating procedures for electronic tenders
on time, you may tender your unregistered
senior securities according to the
guaranteed delivery procedures set forth
under "The Exchange Offer-Guaranteed
Delivery Procedures."
Withdrawal Rights................ You may withdraw the tender of your
unregistered senior securities at any time
prior to 5:00 p.m., New York City time, on
,2001, the expiration date.
Consequences of Failure to
Exchange...................... If you are eligible to participate in this
exchange offer and you do not tender your
unregistered senior securities as described
in this prospectus, you will not have any
further registration rights. In that case,
your unregistered senior securities will
continue to be subject to restrictions on
transfer. As a result of the restrictions on
transfer and the availability of exchange
6
senior securities, the unregistered senior
securities are likely to be much less liquid
than before the exchange offer. The
unregistered senior securities will, after
the exchange offer, bear interest at the
same rate as the exchange senior securities.
Certain U.S. Federal Income
Tax Consequences.............. The exchange of the unregistered senior
securities for exchange senior securities
pursuant to the exchange offer will not be a
taxable exchange for U.S. federal income tax
purposes.
Use of Proceeds.................. We will not receive any proceeds from the
issuance of exchange senior securities
pursuant to the exchange offer.
Exchange Agents for
Unregistered Senior Securities... Citibank, N.A., the trustee under the
indenture for the unregistered senior
securities, is serving as the principal
exchange agent in connection with the
exchange offer. Citibank can be reached at
111 Wall Street, 15th Floor, New York, New
York 10005; its telephone number is (800)
422-2066 and its facsimile number is (212)
825-3483.
Kredietbank S.A. Luxembourgeoise, our
Luxembourg listing, paying and transfer
agent, will also act as Luxembourg exchange
agent. In its capacity as Luxembourg
exchange agent, Kredietbank will act solely
as an intermediary between Citibank, as the
principal exchange agent, and holders of
unregistered senior securities wishing to
accept the exchange offer. Kredietbank will
forward the tenders it receives to the
principal exchange agent. Kredietbank can be
reached at 43, Boulevard Royal, L-2955
Luxembourg; its telephone number is (352) 47
97 3933 and its facsimile number is (352) 47
97 73 951.
7
SUMMARY DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES
The following summarized description of the exchange senior securities
is subject to a number of important exceptions and qualifications. For
additional information on the terms of the exchange senior securities, see
"Description of Senior Securities."
Exchange Senior Securities....... o $400,000,000 aggregate principal
amount of registered 6.40% senior
notes due 2006.
o $1,000,000,000 aggregate principal
amount of registered 6.625% senior
notes due 2011.
Further Issuance................. The unregistered 2006 senior notes will be,
upon their exchange for exchange 2006 senior
notes registered under the Securities Act, a
further issuance of our 6.40% senior notes
due 2006, $396,925,000 of which were issued
on March 19, 2001.
Maturity Dates................... o January 30, 2006 for the exchange
2006 senior notes.
o May 15, 2011 for the exchange 2011
senior notes.
Interest Payment Dates........... o January 30 and July 30 of each year
for the exchange 2006 senior notes.
o May 15 and November 15 of each year
for the exchange 2011 senior notes.
Interest will be paid beginning on the
interest payment date immediately following
the last interest payment date for which
interest was paid on unregistered senior
securities.
Optional Redemption.............. The exchange 2011 senior notes are
redeemable at our option, in whole or in
part, at any time. The redemption price is
the principal amount of the exchange 2011
senior notes redeemed, plus accrued and
unpaid interest, plus a make-whole premium
based on a discount rate of 25 basis points,
over an appropriate treasury rate.
Covenants........................ The indenture governing the exchange senior
securities contains covenants that, among
other things, limit our ability to:
o create certain liens;
o enter into certain sale and
leaseback transactions; and
o consolidate, merge or sell all or
substantially all of our assets,
unless certain conditions are met.
8
Events of Default................ The indenture provides for events of
default, subject to applicable cure periods,
including:
o we do not pay interest on a senior
security within 30 days of its due
date;
o we do not pay the principal of or
any premium on a senior security on
its due date;
o we remain in breach of a covenant
or warranty in respect of the
indenture for 60 days after we
receive a written notice of
default. The notice must be sent by
either the trustee or holders of at
least 25% in principal amount of a
series of outstanding senior
securities;
o we are in default under agreements
under which we have indebtedness
outstanding in excess of $250
million in the aggregate and which
indebtedness is due either at
maturity or has been declared due
prior to maturity and remains
unpaid;
o we fail to pay a money judgment in
excess of $250 million for a period
of 60 days after it becomes final
and not subject to further appeal;
or
o we or Viacom International file for
bankruptcy, or other specified
events of bankruptcy, insolvency or
reorganization occur.
Trustee.......................... Citibank, N.A.
Listing.......................... Application has been made to list the
exchange senior securities on the Luxembourg
Stock Exchange.
9
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 2001:
o on a historical basis, as reported by Viacom and
o on a pro forma basis to reflect the issuance and sale of
unregistered 6.40% senior notes due 2006 and unregistered
6.625% senior notes due 2011 on May 17, 2001, the issuance and
sale of registered 7.25% senior notes due 2051 on June 27,
2001, and the application of the net proceeds from the sale of
these senior notes to the repayment of outstanding commercial
paper indebtedness.
We will not receive any proceeds from this exchange offer.
At March 31, 2001(1)
(Unaudited)
---------------------------------
Historical Pro Forma
---------- ---------
(in millions, except per share
amounts)
Long-term Debt:
Continuing operations:
Notes payable to banks (including commercial paper)................... $ 4,532 $ 2,815
Senior notes and debentures (6.75% - 10.50%, due 2002-2030) .......... 6,953 6,953
Senior subordinated notes (8.875%-10.25%, due 2001-2007).............. 564 564
Subordinated exchange debentures (11.375%, due 2009).................. 39 39
Other .............................................................. 42 42
Obligations under capital leases...................................... 508 508
6.40% senior notes due 2006 .......................................... 399 805
6.625% senior notes due 2011 ......................................... --- 993
7.25% senior notes due 2051 .......................................... --- 335
---------- ---------
Total debt...................................................... 13,037 13,054
---------- ---------
Stockholders' Equity:
Class A common stock, par value $.01 per share; 500 shares
authorized; 139 shares issued(1)...................................... 1 1
Class B common stock, par value $.01 per share; 3,000 shares
authorized; 1,689 shares issued(1).................................... 17 17
Additional paid-in capital................................................. 64,726 64,726
Retained earnings.......................................................... 1,425 1,425
Accumulated other comprehensive loss....................................... (201) (201)
Less: Treasury stock....................................................... (2,510) (2,510)
---------- ---------
Total stockholders' equity...................................... 63,458 63,458
---------- ---------
Total capitalization............................................ $ 76,495 $ 76,512
========== =========
- ---------------
(1) Except as set forth above and except as otherwise disclosed in any
documents incorporated herein by reference, there has been no material
change in the total capitalization of Viacom since March 31, 2001.
10
SUMMARY HISTORICAL FINANCIAL DATA
The summary consolidated financial data presented below have been
derived from, and should be read together with, our audited consolidated
financial statements and the accompanying notes included in our annual report on
Form 10-K for the year ended December 31, 2000 and the unaudited interim
consolidated financial statements and the accompanying notes included in our
quarterly report on Form 10-Q for the quarter ended March 31, 2001, both of
which are incorporated by reference into this prospectus.
Three Months
Ended March 31,
(Unaudited) Year Ended December 31,
-------------------- --------------------------------------------------------
2001(a) 2000 2000(a) 1999 1998 1997 1996
------- ---- ------- ---- ---- ---- ----
(in millions, except per share amounts)
Statement of Operations Data:
Revenues ............................... $ 5,752 $ 3,026 $ 20,044 $ 12,859 $12,096 $ 10,685 $ 9,684
Depreciation............................ 214 135 800 497 442 447 331
Amortization of intangibles............. 531 95 1,424 348 336 325 323
Operating income........................ 404 240 1,321 1,247 752 685 1,197
Earnings (loss) from continuing
operations ........................ (7) 68 (364) 372 (44) 374 152
Net earnings (loss)..................... (7) (384) (816) 334 (122) 794 1,248
Net earnings (loss) attributable to
common stock....................... (7) (384) (816) 322 (150) 734 1,188
Earnings (loss) per common share:
Basic:
Earnings (loss) from continuing
operations......................... $ __ $ 0.10 $ (0.30) $ 0.52 $ (0.10) $ 0.44 $ 0.13
Net earnings (loss)................ $ __ $ (0.55) $ (0.67) $ 0.46 $ (0.21) $ 1.04 $ 1.63
Diluted:
Earnings (loss) from continuing
operations......................... $ __ $ 0.10 $ (0.30) $ 0.51 $ (0.10) $ 0.44 $ 0.13
Net earnings (loss)................ $ __ $ (0.54) $ (0.67) $ 0.45 $ (0.21) $ 1.04 $ 1.62
Weighted average shares outstanding:
Basic.............................. 1,628 695 1,225 695 709 706 728
Diluted............................ 1,628 711 1,225 710 709 709 735
Other Data:
EBITDA(b)............................... $ 1,149 $ 470 $ 3,544 $ 2,092 $ 1,530 $ 1,457 $ 1,851
At December 31,
At March 31, 2001 ----------------------------------------------------------
(Unaudited)(a) 2000(a) 1999 1998 1997 1996
--------------- ------- ---- ---- ---- ----
(in millions)
Balance Sheet Data:
Cash and cash equivalents............... $ 948 $ 935 $ 681 $ 767 $ 292 $ 209
Intangibles, net........................ 71,867 62,004 11,479 11,557 14,700 14,894
Total assets............................ 92,550 82,646 24,486 23,613 28,289 28,834
Long-term debt, net of current portion.. 12,887 12,474 5,698 3,813 7,423 9,856
Stockholders' equity ................... 63,458 47,967 11,132 12,050 13,384 12,587
- ---------------
(a) Includes financial information for CBS Corporation from May 4, 2000, the
date of its merger with and into Viacom. Accordingly, operating results and
financial position are not necessarily comparable on a year-to-year basis.
(b) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. We believe that
EBITDA is an appropriate measure for evaluating our operating performance.
However, EBITDA should be considered in addition to, not as a substitute
for or superior to, operating income, net earnings, cash flow and other
measures of financial performance prepared in accordance with generally
accepted accounting principles. As EBITDA is not a measure of performance
calculated in accordance with generally accepted accounting principles,
this measure may not be comparable to similarly titled measures employed by
other companies.
11
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following summary unaudited pro forma combined financial
information is based upon the historical financial statements of Viacom,
adjusted for the Viacom/CBS merger, BET acquisition, Viacom/Infinity merger and
certain other transactions. The unaudited pro forma combined condensed statement
of operations data for the three months ended March 31, 2001 and the year ended
December 31, 2000 is presented as if the above transactions had occurred on
January 1, 2000.
The summary unaudited pro forma combined condensed financial data is
for illustrative purposes only and does not necessarily indicate the operating
results that would have been achieved had the Viacom/CBS merger, BET
acquisition, Viacom/Infinity merger and certain other transactions been
completed as of the dates indicated or of the results that may be obtained in
the future. In addition, the data does not reflect synergies that might be
achieved from combining these operations.
Unaudited Pro Forma Combined Statement of Operations Data
Three Months
Ended Year Ended
March 31, December
2001 31, 2000
-------------- ----------------
Statement of Operations Data: (in millions, except per share
amounts)
Revenues .............................................................. $ 5,768 $ 23,620
Operating income....................................................... 378 1,908
Earnings from continuing operations before income taxes................ 121 971
Loss from continuing operations........................................ (30) (189)
Basic and diluted loss from continuing operations per share............ (0.02) (0.11)
Basic and diluted weighted average shares outstanding.................. 1,770 1,774
Other Data:
EBITDA(a) ............................................................. $ 1,154 $ 5,047
- ---------------
(a) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. We believe that
EBITDA is an appropriate measure for evaluating our operating performance.
However, EBITDA should be considered in addition to, not as a substitute
for or superior to, operating income, net earnings, cash flow and other
measures of financial performance prepared in accordance with generally
accepted accounting principles. As EBITDA is not a measure of performance
calculated in accordance with generally accepted accounting principles,
this measure may not be comparable to similarly titled measures employed by
other companies.
12
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The ratio of earnings to fixed charges for Viacom are set forth below,
on a pro forma basis, for the three months ended March 31, 2001 and the year
ended December 31, 2000 to give effect to the Viacom/CBS merger, BET
acquisition, Viacom/Infinity merger and certain other transactions, as if the
transactions each occurred on January 1, 2000, and on a historical basis for the
three months ended March 31, 2001 and for each year in the five-year period
ended December 31, 2000.
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.
Three Months Ended Year Ended December 31,
March 31, 2001 2000 Viacom Historical
---------------------- ---------------------------------------------
Historical Pro Forma Pro Forma 2000 1999 1998 1997 1996
---------- --------- --------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed
Charges............... 1.5x 1.4x 1.2x 1.5x 2.2x 1.1x 2.0x 1.4x
13
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In
consideration for issuing the exchange senior securities contemplated by this
prospectus, we will receive unregistered senior securities from you in like
principal amount. The unregistered senior securities surrendered in exchange for
the exchange senior securities will be retired and canceled and cannot be
reissued. Accordingly, issuance of the exchange senior securities will not
result in any change in our indebtedness.
14
THE EXCHANGE OFFER
Purpose and Effect of Exchange Offer; Registration Rights
We sold the unregistered senior securities to Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Smith Barney Inc., as representatives of
the initial purchasers, on May 17, 2001. The initial purchasers then resold the
unregistered senior securities under an offering memorandum dated May 10, 2001
in reliance on Rule 144A and Regulation S under the Securities Act. On May 17,
2001, we entered into a registration rights agreement with the initial
purchasers. Under the registration rights agreement, we agreed:
o to file with the SEC a registration statement relating to the exchange
offer under the Securities Act no later than July 16, 2001;
o to use our reasonable best efforts to cause the exchange offer
registration statement to be declared effective under the Securities
Act on or before November 13, 2001; and
o to use our reasonable best efforts to cause the exchange offer to be
consummated not later than 45 days following the date of effectiveness
of the exchange offer registration statement, but not before July 30,
2001.
If you participate in the exchange offer, you will, with limited
exceptions, receive senior securities that are freely tradable and not subject
to restrictions on transfer. You should read the information in this prospectus
under the heading "-Resales of Exchange Senior Securities" for more information
relating to your ability to transfer exchange senior securities.
The exchange offer is not being made to, nor will we accept tenders for
exchange from, holders of unregistered senior securities in any jurisdiction in
which the exchange offer or the acceptance of the exchange offer would not be in
compliance with the securities laws or blue sky laws of such jurisdiction.
If you are eligible to participate in this exchange offer and you do
not tender your unregistered senior securities as described in this prospectus,
you will not have any further registration rights. In that case, your
unregistered senior securities will continue to be subject to restrictions on
transfer under the Securities Act.
Shelf Registration
In the registration rights agreement, we agreed to file a shelf
registration statement only if:
o after May 17, 2001, there is a change in law or applicable
interpretations of the law by the staff of the SEC, and as a result we
are not permitted to complete the exchange offer as contemplated by
the registration rights agreement;
o any holder of unregistered senior securities is not able to
participate in the exchange offer;
o any holder of unregistered senior securities does not receive fully
transferable exchange senior securities;
15
o the exchange offer registration statement is not declared effective by
November 13, 2001 or the exchange offer is not consummated within 45
days after the exchange offer registration statement is declared
effective, but not earlier than July 30, 2001, although we may
terminate the shelf registration statement at any time, without
penalty, if the exchange offer registration statement is declared
effective or the exchange offer is consummated; or
o upon the request of any of the initial purchasers made within 90 days
after the consummation of the exchange offer with respect to
unregistered senior securities not eligible to be exchanged in the
exchange offer and held by it following the consummation of the
exchange offer.
If a shelf registration statement is required, we will use our
reasonable best efforts to:
o file the shelf registration statement with the SEC no later than (a)
December 13, 2001 or (b) the 60th day after such filing obligation
arises, whichever is later;
o use our reasonable efforts to cause the shelf registration statement
to be declared effective by the SEC no later than January 14, 2002;
and
o use our reasonable efforts to keep the shelf registration statement
effective until two years after the effective date, or if earlier
until all of the unregistered senior securities covered by the shelf
registration statement are sold thereunder or are already freely
tradable.
During any 365-day period, we will have the ability to suspend the
availability of the shelf registration statement for up to 4 periods of up to 45
consecutive days (except for the consecutive 45-day period immediately prior to
the maturity of the senior securities), but no more than an aggregate of 90 days
during any 365-day period, if our board of directors determines in good faith
that there is a valid purpose for the suspension.
The shelf registration statement will permit only certain holders to
resell their unregistered senior securities from time to time. In particular,
such holders must:
o provide specified information in connection with the shelf
registration statement; and
o agree in writing to be bound by all provisions of the registration
rights agreement (including the applicable indemnification
obligations).
If we are required to file a shelf registration statement, we will
provide to each holder of unregistered senior securities that are covered by the
shelf registration statement copies of the prospectus that is a part of the
shelf registration statement and notify each such holder when the shelf
registration statement becomes effective. A holder who sells unregistered senior
securities pursuant to the shelf registration statement will be required to be
named as a selling securityholder in the prospectus and to deliver a copy of the
prospectus to purchasers. Such holder will be subject to certain of the civil
liability provisions under the Securities Act in connection with such sales, and
will be bound by the provisions of the registration rights agreement which are
applicable to such a holder (including the applicable indemnification
obligations).
Additional Interest
If a registration default (as defined below) occurs, we will be
required to pay additional interest to each holder of unregistered senior
securities. During the first 90-day period that a registration default
16
occurs, we will pay additional interest equal to 0.25% per annum. At the
beginning of the second and any subsequent 90-day period that a registration
default is continuing, the amount of additional interest will increase by an
additional 0.25% per annum until all registration defaults have been cured.
However, in no event will the rate of additional interest exceed 0.50% per annum
for each of the unregistered senior securities. Such additional interest will
accrue only for those days that a registration default occurs and is continuing.
All accrued additional interest will be paid to the holders of the unregistered
senior securities in the same manner as interest payments on the unregistered
senior securities are made, with payments being made on the interest payment
dates for the senior securities. Following the cure of all registration
defaults, no more additional interest will accrue. You will not be entitled to
receive any additional interest if you were, at any time while the exchange
offer was pending, eligible to exchange, and did not validly tender your
unregistered senior securities for exchange senior securities in the exchange
offer.
A "registration default" includes any of the following:
o we fail to file any of the registration statements required by the
registration rights agreement on or before the date specified for such
filing;
o any of such registration statements is not declared effective by the
SEC on or prior to the date specified for such effectiveness;
o we fail to complete the exchange offer on or prior to the date
specified for such completion; or
o the shelf registration statement or the exchange offer registration
statement is declared effective but thereafter ceases to be effective
or usable in connection with resales of the senior securities during
the period specified in the registration rights agreement, subject to
certain exceptions for limited periods of time with respect to the
shelf registration statement.
The exchange offer is intended to satisfy our exchange offer
obligations under the registration rights agreement. The above summary of the
registration rights agreement is not complete and is subject to, and qualified
by reference to, all the provisions of the registration rights agreement. A copy
of the registration rights agreement is filed as an exhibit to the registration
statement that includes this prospectus.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and in the accompanying letter of transmittal, we are offering to
exchange $1,000 principal amount of exchange senior securities for each $1,000
principal amount of unregistered senior securities. You may tender some or all
of your unregistered senior securities only in integral multiples of $1,000. As
of the date of this prospectus, $400 million aggregate principal amount of the
unregistered 2006 senior notes issued May 17, 2001 and $1 billion aggregate
principal amount of the unregistered 2011 senior notes issued May 17, 2001 are
outstanding.
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act and,
therefore, the certificates for the exchange senior securities will not bear
legends restricting their transfer. The exchange senior securities will be
issued under and be entitled to the benefits of the Indenture, dated as of May
15, 1995, among us, our wholly owned subsidiary, Viacom International, as
guarantor, and Citibank, N.A., as successor to State Street Bank and Trust
Company and The First National Bank of Boston, Trustee. The Indenture was
supplemented by the First Supplemental
17
Indenture, dated as of May 24, 1995, was supplemented and amended by the Second
Supplemental Indenture and Amendment No. 1, dated as of December 15, 1995, was
supplemented by the Third Supplemental Indenture, dated as of July 22, 1996, was
supplemented by the Fourth Supplemental Indenture, dated as of August 1, 2000,
was supplemented by the Fifth Supplemental Indenture, dated as of January 17,
2001, was supplemented, in connection with the issuance of the unregistered
senior securities, by the Sixth Supplemental Indenture, dated as of May 17, 2001
and was supplemented by the Seventh Supplemental Indenture, dated as of May 31,
2001. We refer to the Indenture, as so supplemented and amended, as the
"Indenture."
In connection with the issuance of the unregistered senior securities,
we arranged for the unregistered senior securities to be issued and transferable
in book-entry form through the facilities of Euroclear, Clearstream Luxembourg
and DTC, acting as a depositary. The exchange senior securities will also be
issuable and transferable in book-entry form through Euroclear, Clearstream
Luxembourg and DTC.
There will be no fixed record date for determining the eligible holders
of the unregistered senior securities that are entitled to participate in the
exchange offer. We will be deemed to have accepted for exchange validly tendered
unregistered senior securities when and if we have given oral (promptly
confirmed in writing) or written notice of acceptance to the exchange agent. The
exchange agent will act as agent for the tendering holders of unregistered
senior securities for the purpose of receiving exchange senior securities from
us and delivering them to such holders.
If any tendered unregistered senior securities are not accepted for
exchange because of an invalid tender or the occurrence of certain other events
described herein, certificates for any such unaccepted unregistered senior
securities will be returned, without expenses, to the tendering holder thereof
as promptly as practicable after the expiration of the exchange offer.
Holders of unregistered senior securities who tender in the exchange
offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the letter of transmittal, transfer taxes with respect to
the exchange of unregistered senior securities for exchange senior securities
pursuant to the exchange offer. We will pay all charges and expenses, other than
certain applicable taxes, in connection with the exchange offer. It is important
that you read the section "- Fees and Expenses" below for more details regarding
fees and expenses incurred in the exchange offer.
If we successfully complete this exchange offer, any unregistered
senior securities which holders do not tender or which we do not accept in the
exchange offer will remain outstanding and will continue to be subject to
restrictions on transfer. The unregistered senior securities will continue to
accrue interest, but, in general, the holders of unregistered senior securities
after the exchange offer will not have further rights under the registration
rights agreement, and we will not have any further obligation to register the
unregistered senior securities under the Securities Act. In that case, holders
wishing to transfer unregistered senior securities would have to rely on
exemptions from the registration requirements of the Securities Act.
Conditions of the Exchange Offer
You must tender your unregistered senior securities in accordance with
the requirements of this prospectus and the letter of transmittal in order to
participate in the exchange offer. Notwithstanding any other provision of the
exchange offer, or any extension of the exchange offer, we will not be required
to accept for exchange any unregistered senior securities, and may amend or
terminate the exchange offer if:
18
o the exchange offer, or the making of any exchange by a senior security
holder, violates applicable law or any applicable interpretation of
the staff of the SEC;
o any action or proceeding shall have been instituted or threatened with
respect to the exchange offer which, in our judgment or the judgment
of Viacom International, would impair our ability to proceed with the
exchange offer; and
o any law, rule or regulation or applicable interpretations of the staff
of the SEC have been issued or promulgated which, in our good faith
determination or the good faith determination of Viacom International,
does not permit us to effect the exchange offer.
Expiration Date; Extensions; Amendment; Termination
The exchange offer will expire 5:00 p.m., New York City time, on ,
2001, unless, in our sole discretion, we extend it. In the case of any
extension, we will notify the exchange agent orally (promptly confirmed in
writing) or in writing of any extension. We will also notify the registered
holders of unregistered senior securities of the extension no later than 9:00
a.m., New York City time, on the business day after the previously scheduled
expiration of the exchange offer.
To the extent we are legally permitted to do so, we expressly reserve
the right, in our sole discretion, to:
o delay accepting any unregistered senior security;
o waive any condition of the exchange offer; and
o amend the terms of the exchange offer in any manner.
We will give oral or written notice of any non-acceptance or amendment
to the registered holders of the unregistered senior securities as promptly as
practicable. If we consider an amendment to the exchange offer to be material,
we will promptly inform the registered holders of unregistered senior securities
of such amendment in a reasonable manner.
If we or Viacom International determine in our sole discretion that any
of the events or conditions described in "- Conditions of the Exchange Offer"
has occurred, we may terminate the exchange offer. If we decide to terminate the
exchange offer, we may:
o refuse to accept any unregistered senior securities and return any
unregistered senior securities that have been tendered to the holders;
o extend the exchange offer and retain all unregistered senior
securities tendered prior to the expiration of the exchange offer,
subject to the rights of the holders of tendered unregistered senior
securities to withdraw their tendered unregistered senior securities;
or
o waive the termination event with respect to the exchange offer and
accept all properly tendered unregistered senior securities that have
not been withdrawn.
If any such waiver constitutes a material change in the exchange offer,
we will disclose the change by means of a supplement to this prospectus that
will be distributed to each registered holder of unregistered senior securities,
and we will extend the exchange offer for a period of five to ten business
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days, depending upon the significance of the waiver and the manner of disclosure
to the registered holders of the unregistered senior securities, if the exchange
offer would otherwise expire during that period.
Any determination by us concerning the events described above will be
final and binding upon parties. Without limiting the manner by which we may
choose to make public announcements of any extension, delay in acceptance,
amendment or termination of the exchange offer, we will have no obligation to
publish, advertise, or otherwise communicate any public announcement, other than
by making a timely release to a financial news service.
Interest on the Exchange Senior Securities
The exchange senior securities will accrue interest from the date
interest was last paid on the unregistered senior securities. If no interest was
paid on your unregistered senior securities, your exchange senior securities
will accrue interest from and including May 17, 2001. Interest will be paid on
the exchange 2006 senior notes semi-annually on January 30 and July 30 of each
year. Interest will be paid on the exchange 2011 senior notes semi-annually on
May 15 and November 15 of each year. Holders of unregistered senior securities
that are accepted for exchange will be deemed to have waived the right to
receive any payment in respect of interest accrued from the date of the last
interest payment date that was made in respect of the unregistered senior
securities until the date of the issuance of the exchange senior securities.
Consequently, holders of exchange senior securities will receive the same
interest payments that they would have received had they not accepted the
exchange offer.
Resale of Exchange Senior Securities
Based upon existing interpretations of the staff of the SEC set forth
in several no-action letters issued to third parties unrelated to us, we believe
that the exchange senior securities issued pursuant to the exchange offer in
exchange for the unregistered senior securities may be offered for resale,
resold and otherwise transferred by their holders, without complying with the
registration and prospectus delivery provisions of the Securities Act, provided
that:
o any exchange senior securities to be received by you will be acquired
in the ordinary course of your business;
o you are not engaged in, do not intend to engage in or have any
arrangement or understanding with any person to participate in the
distribution of the unregistered senior securities or exchange senior
securities;
o you are not an "affiliate" (as defined in Rule 405 under the Securities
Act) of Viacom or Viacom International or, if you are such an
affiliate, you will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable;
o if you are a broker-dealer, you have not entered into any arrangement
or understanding with Viacom or Viacom International or any "affiliate"
of Viacom or Viacom International (within the meaning of Rule 405 under
the Securities Act) to distribute the exchange senior securities;
o if you are a broker-dealer, you will receive exchange senior securities
for your own account in exchange for unregistered senior securities
that were acquired as a result of market-making activities or other
trading activities and that you will deliver a prospectus in connection
with any resale of such exchange senior securities; and
o you are not acting on behalf of any person or entity that could not
truthfully make these representations.
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If you wish to participate in the exchange offer, you will be required
to make these representations to us in the letter of transmittal.
If you are a broker-dealer that receives exchange senior securities in
exchange for unregistered senior securities held for your own account, as a
result of market-making or other trading activities, you must acknowledge that
you will deliver a prospectus in connection with any resale of the exchange
senior securities. The letter of transmittal states that by so acknowledging and
by delivering a prospectus, you will not be deemed to admit that you are an
"underwriter" within the meaning of the Securities Act. The prospectus, as it
may be amended or supplemented from time to time, may be used by any
broker-dealers in connection with resales of exchange senior securities received
in exchange for unregistered senior securities. We have agreed that, for a
period of 180 days after the expiration of the exchange offer, we will make this
prospectus and any amendment or supplement to this prospectus available to any
such broker-dealer for use in connection with any resale.
Clearing of the Exchange Senior Securities
Upon consummation of the exchange offer, the exchange senior securities
will have different CUSIP, Common Code and ISIN numbers from the unregistered
senior securities. Upon consummation of the exchange offer, the exchange 2006
senior securities will have the same CUSIP, Common Code and ISIN numbers given
to our registered 6.40% senior notes due 2006 which were issued on March 19,
2001.
Senior securities that were issued under Regulation S that are not
tendered for exchange will continue to clear through Euroclear and Clearstream
Luxembourg under their original Common Codes and their ISIN numbers will remain
the same. Regulation S senior securities (unless acquired by a manager as part
of their original distribution) may now be sold in the United States or to U.S.
persons and, upon any such transfer, a beneficial interest in the Regulation S
global senior securities will be able to be exchanged for an interest in the
exchange global senior security in accordance with procedures established by
Euroclear or Clearstream Luxembourg and DTC.
Beneficial interests in the restricted Regulation S global senior
securities may be transferred to a person who takes delivery in the form of an
interest in the Regulation S global senior securities upon receipt by the
trustee of a written certification from the transferor, in the form provided in
the Indenture, to the effect that the transfer is being made in accordance with
Rule 903 or 904 of Regulation S.
We cannot predict the extent to which beneficial owners of an interest
in the Regulation S global senior securities will participate in the exchange
offer. Beneficial owners should consult their own financial advisors as to the
benefits to be obtained from exchange.
Procedures for Tendering
The term "holder" with respect to the exchange offer means any person
in whose name unregistered senior securities are registered on our agent's books
or any other person who has obtained a properly completed bond power from the
registered holder, or any person whose unregistered senior securities are held
of record by DTC, Euroclear or Clearstream Luxembourg who desires to deliver
such unregistered senior securities by book-entry transfer at DTC, Euroclear or
Clearstream Luxembourg as the case may be.
Except in limited circumstances, only a Euroclear participant,
Clearstream Luxembourg participant or a DTC participant listed on a DTC
securities position listing with respect to the unregistered
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senior securities may tender its unregistered senior securities in the exchange
offer. To tender unregistered senior securities in the exchange offer:
o holders of unregistered senior securities that are DTC participants
may follow the procedures for book-entry transfer as provided for
below under "-Book-Entry Transfer" and in the letter of transmittal.
o Euroclear participants and Clearstream Luxembourg participants on
behalf of the beneficial owners of unregistered senior securities are
required to use book-entry transfer pursuant to the standard operating
procedures of Euroclear or Clearstream Luxembourg, as the case may be,
which include transmission of a computer-generated message to
Euroclear or Clearstream Luxembourg, as the case may be, in lieu of a
letter of transmittal. See the term "agent's message" under
"-Book-Entry Transfer."
In addition, either:
o the exchange agent must receive any corresponding certificate or
certificates representing unregistered senior securities along with
the letter of transmittal; or
o the exchange agent must receive, before expiration of the exchange
offer, a timely confirmation of book-entry transfer of unregistered
senior securities into the exchange agent's account at DTC, Euroclear
or Clearstream Luxembourg according to their respective standard
operating procedures for electronic tenders described below and a
properly transmitted agent's message described below; or
o the holder must comply with the guaranteed delivery procedures
described below.
The tender by a holder of unregistered senior securities will
constitute an agreement between such holder and us in accordance with the terms
and subject to the conditions set forth in this prospectus and in the letter of
transmittal. If less than all the unregistered senior securities held by a
holder of unregistered senior securities are tendered, a tendering holder should
fill in the amount of unregistered senior securities being tendered in the
specified box on the letter of transmittal. The entire amount of unregistered
senior securities delivered to the exchange agent will be deemed to have been
tendered unless otherwise indicated.
The method of delivery of unregistered senior securities, the letter of
transmittal and all other required documents or transmission of an agent's
message, as described under "-Book Entry Transfer," to the exchange agent is at
the election and risk of the holder. Instead of delivery by mail, we recommend
that holders use an overnight or hand delivery service. In all cases, sufficient
time should be allowed to assure timely delivery prior to the expiration of the
exchange offer. No letter of transmittal or unregistered senior securities
should be sent to Viacom but must instead be delivered to the exchange agent.
Delivery of documents to DTC, Euroclear or Clearstream Luxembourg in accordance
with their respective procedures will not constitute delivery to the exchange
agent.
If you are a beneficial owner of unregistered senior securities that
are registered in the name of a broker, dealer, commercial bank, trust company
or other nominee and you wish to tender your unregistered senior securities, you
should contact the registered holder promptly and instruct the registered holder
to tender on your behalf. If you wish to tender on your own behalf, you must,
prior to completing and executing the letter of transmittal and delivering your
unregistered senior securities, either:
22
o make appropriate arrangements to register ownership of the
unregistered senior securities in your name; or
o obtain a properly completed bond power from the registered holder.
The transfer of record ownership may take considerable time and may not
be completed prior to the expiration date.
Signatures on a letter of transmittal or a notice of withdrawal as
described in "--Withdrawal of Tenders" below, as the case may be, must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange
Act, unless the unregistered senior securities tendered pursuant thereto are
tendered:
o by a registered holder who has not completed the box entitled "Special
Registration Instructions" or "Special Delivery Instructions" on the
letter of transmittal; or
o for the account of an eligible institution.
If the letter of transmittal is signed by a person other than the
registered holder of any unregistered senior securities listed therein, the
unregistered senior securities must be endorsed or accompanied by appropriate
bond powers which authorize the person to tender the unregistered senior
securities on behalf of the registered holder, in either case signed as the name
of the registered holder or holders appears on the unregistered senior
securities. If the letter of transmittal or any unregistered senior securities
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and,
unless waived by us, evidence satisfactory to us of their authority to so act
must be submitted with the letter of transmittal.
We will determine in our sole discretion all the questions as to the
validity, form, eligibility (including time of receipt), acceptance and
withdrawal of the tendered unregistered senior securities. Our determinations
will be final and binding. We reserve the absolute right to reject any and all
unregistered senior securities not validly tendered or any unregistered senior
securities our acceptance of which would, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any irregularities or
conditions of tender as to particular unregistered senior securities. Our
interpretation of the terms and conditions of the exchange offer (including the
instructions in the letter of transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of unregistered senior securities must be cured within such time as we will
determine. Neither we, the exchange agent nor any other person shall be under
any duty to give notification of defects or irregularities with respect to
tenders of unregistered senior securities nor shall any of them incur any
liability for failure to give such notification. Tenders of unregistered senior
securities will not be deemed to have been made until such irregularities have
been cured or waived. Any unregistered senior securities received by the
exchange agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned without cost by
the exchange agent to the tendering holder of such unregistered senior
securities unless otherwise provided in the letter of transmittal, as soon as
practicable following the expiration date of the exchange offer.
In addition, we reserve the right in our sole discretion to (a)
purchase or make offers for any unregistered senior securities that remain
outstanding subsequent to the expiration date, and (b) to the extent permitted
by applicable law, purchase unregistered senior securities in the open market,
in
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privately negotiated transactions or otherwise. The terms of any such purchases
or offers may differ from the terms of the exchange offer.
Book-Entry Transfer
We understand that the exchange agent will make a request promptly
after the date of this document to establish accounts with respect to the
unregistered senior securities at DTC, Euroclear or Clearstream Luxembourg for
the purpose of facilitating the exchange offer. Any financial institution that
is a participant in DTC's system may make book-entry delivery of unregistered
senior securities by causing DTC to transfer such unregistered senior securities
into the exchange agent's DTC account in accordance with DTC's Automated Tender
Offer Program procedures for such transfer. Any participant in Euroclear or
Clearstream Luxembourg may make book-entry delivery of Regulation S unregistered
senior securities by causing Euroclear or Clearstream Luxembourg to transfer
such senior securities into the exchange agent's account in accordance with
established Euroclear or Clearstream Luxembourg procedures for transfer. The
exchange for tendered unregistered senior securities will only be made after a
timely confirmation of a book-entry transfer of the unregistered senior
securities into the exchange agent's account, and timely receipt by the exchange
agent of an agent's message.
The term "agent's message" means a message, transmitted by DTC,
Euroclear or Clearstream Luxembourg, as the case may be, and received by the
exchange agent and forming part of the confirmation of a book-entry transfer,
which states that DTC, Euroclear or Clearstream Luxembourg, as the case may be,
has received an express acknowledgment from a participant tendering unregistered
senior securities and that such participant has received an appropriate letter
of transmittal and agrees to be bound by the terms of the letter of transmittal,
and we may enforce such agreement against the participant. Delivery of an
agent's message will also constitute an acknowledgment from the tendering DTC,
Euroclear or Clearstream Luxembourg participant, as the case may be, that the
representations contained in the appropriate letter of transmittal and described
above are true and correct.
Guaranteed Delivery Procedures
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities, the letter of transmittal,
or any other required documents to the exchange agent prior to the expiration
date, or if such holder cannot complete DTC's, Euroclear's or Clearstream
Luxembourg's respective standard operating procedures for electronic tenders
before expiration of the exchange offer, may tender their unregistered senior
securities if:
o the tender is made through an eligible institution;
o before expiration of the exchange offer, the exchange agent receives
from the eligible institution either a properly completed and duly
executed notice of guaranteed delivery in the form accompanying this
prospectus, by facsimile transmission, mail or hand delivery, or a
properly transmitted agent's message in lieu of notice of guaranteed
delivery:
o setting forth the name and address of the holder and the
registered number(s), the certificate number or numbers of the
unregistered senior securities tendered and the principal amount
of unregistered senior securities tendered;
o stating that the tender offer is being made by guaranteed
delivery; and
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o guaranteeing that, within three (3) business days after
expiration of the exchange offer, the letter of transmittal, or
facsimile of the letter of transmittal, together with the
unregistered senior securities tendered or a book-entry
confirmation, and any other documents required by the letter of
transmittal will be deposited by the eligible institution with
the exchange agent; and
o the exchange agent receives the properly completed and executed letter
of transmittal, or facsimile of the letter of transmittal, as well as
all tendered unregistered senior securities in proper form for
transfer or a book-entry confirmation, and all other documents
required by the letter of transmittal, within three (3) business days
after expiration of the exchange offer.
Upon request to the exchange agent, a notice of guaranteed delivery
will be sent to holders who wish to tender their unregistered senior securities
according to the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of unregistered senior
securities may be withdrawn at any time prior to 5:00 p.m., New York City time,
on , 2001, the expiration date of the exchange offer.
For a withdrawal to be effective:
o the exchange agent must receive a written notice, which may be by
telegram, telex, facsimile transmission or letter, of withdrawal at
the address set forth below under "Exchange Agent"; or
o for DTC, Euroclear or Clearstream Luxembourg participants, holders
must comply with their respective standard operating procedures for
electronic tenders and the exchange agent must receive an electronic
notice of withdrawal from DTC, Euroclear or Clearstream Luxembourg.
Any notice of withdrawal must:
o specify the name of the person who tendered the unregistered senior
securities to be withdrawn;
o identify the unregistered senior securities to be withdrawn, including
the certificate number or numbers and principal amount of the
unregistered senior securities to be withdrawn;
o be signed by the person who tendered the unregistered senior
securities in the same manner as the original signature on the letter
of transmittal, including any required signature guarantees; and
o specify the name in which the unregistered senior securities are to be
re-registered, if different from that of the withdrawing holder.
If unregistered senior securities have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of withdrawal must
specify the name and number of the account at DTC, Euroclear or Clearstream
Luxembourg to be credited with the withdrawn unregistered senior securities and
otherwise comply with the procedures of the facility. We will determine all
questions as to the validity, form and eligibility (including time of receipt)
for such withdrawal notices, and our determination shall be final and binding on
all parties. Any unregistered senior securities so withdrawn will be deemed not
to have been validly tendered for purposes of the exchange offer, and no
exchange senior securities will be issued with respect thereto unless the
unregistered senior securities so withdrawn
25
are validly re-tendered. Any unregistered senior securities which have been
tendered but which are not accepted for exchange will be returned to the holder
without cost to such holder as soon as practicable after withdrawal. Properly
withdrawn unregistered senior securities may be re-tendered by following the
procedures described above under "-Procedures for Tendering" at any time prior
to the expiration date.
Consequences of Failure to Exchange
If you do not tender your unregistered senior securities to be
exchanged in this exchange offer, they will remain "restricted securities"
within the meaning of Rule 144(a)(3) of the Securities Act. Accordingly, they:
o may be resold only if (i) registered pursuant to the Securities Act,
(ii) an exemption from registration is available or (iii) neither
registration nor an exemption is required by law; and
o shall continue to bear a legend restricting transfer in the absence of
registration or an exemption therefrom.
As a result of the restrictions on transfer and the availability of the
exchange senior securities, the unregistered senior securities are likely to be
much less liquid than before the exchange offer. Following the consummation of
the exchange offer, in general, holders of unregistered senior securities will
have no further registration rights under the registration rights agreement.
Exchange Agent
Citibank, N.A. has been appointed as the principal exchange agent and
Kredietbank S.A. Luxembourgeoise has been appointed as the Luxembourg exchange
agent for the exchange of the unregistered senior securities. In its capacity as
Luxembourg exchange agent, Kredietbank will act solely as an intermediary
between Citibank, as the principal exchange agent and the holders of
unregistered senior securities wishing to accept the exchange offer. Kredietbank
will forward the tenders it receives to the principal exchange agent. Questions
and requests for assistance relating to the exchange of the unregistered senior
securities should be directed to the exchange agents addressed as follows:
- --------------------------------------- ----------------------------------------
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Telephone number: (800) 422-2066 Telephone number: (352) 47 97 3933
Facsimile number: (212) 825-3483 Facsimile number: (352) 47 97 73 951
- --------------------------------------- ----------------------------------------
Fees and Expenses
We will bear the expenses of soliciting tenders pursuant to the
exchange offer. The principal solicitation for tenders pursuant to the exchange
offer is being made by mail. Additional solicitations may be made by our
officers and regular employees and our affiliates in person, by telegraph or
telephone.
We will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse the
exchange agent for its related reasonable out-of-pocket expenses and accounting
and legal fees. We may also pay brokerage houses and other custodians, nominees
and fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this prospectus, letters of
26
transmittal and related documents to the beneficial owners of the unregistered
senior securities and in handling or forwarding tenders for exchange.
We will pay all transfer taxes, if any, applicable to the exchange of
unregistered senior securities pursuant to the exchange offer. The tendering
holder, however, will be required to pay any transfer taxes whether imposed on
the registered holder or any other person, if:
o certificates representing exchange senior securities or unregistered
senior securities for principal amounts not tendered or accepted for
exchange are to be delivered to, or are to be registered or issued in
the name of, any person other than the registered holder of
unregistered senior securities tendered;
o tendered unregistered senior securities are registered in the name of
any person other than the person signing the letter of transmittal; or
o a transfer tax is imposed for any reason other than the exchange of
unregistered senior securities under the exchange offer.
If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the letter of transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
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DESCRIPTION OF SENIOR SECURITIES
General
We issued the unregistered senior securities and will issue the
exchange senior securities under the Indenture, dated as of May 15, 1995, among
us, our wholly owned subsidiary, Viacom International, as guarantor, and
Citibank, N.A., as successor to State Street Bank and Trust Company and The
First National Bank of Boston, Trustee. The Indenture was supplemented by the
First Supplemental Indenture, dated as of May 24, 1995, was supplemented and
amended by the Second Supplemental Indenture and Amendment No.1, dated as of
December 15, 1995, was supplemented by the Third Supplemental Indenture, dated
as of July 22, 1996, was supplemented by the Fourth Supplemental Indenture,
dated as of August 1, 2000, was supplemented by a Fifth Supplemental Indenture,
dated as of January 17, 2001, was supplemented, in connection with the issuance
of the unregistered senior securities, by the Sixth Supplemental Indenture,
dated as of May 17, 2001 and was supplemented by the Seventh Supplemental
Indenture, dated as of May 31, 2001. We refer to the Indenture, as so
supplemented and amended, as the "Indenture."
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act of
1933, the certificates for the exchange senior securities will not bear legends
restricting their transfer and the exchange senior securities will not have
registration rights or any rights to additional interest.
The senior securities initially are limited to $1,400,000,000 principal
amount, consisting of $400,000,000 principal amount of 2006 senior notes and
$1,000,000,000 principal amount of 2011 senior notes. The unregistered 2006
senior notes will be, upon their exchange for exchange 2006 senior notes
registered under the Securities Act, a further issuance of our 6.40% senior
notes due 2006, $396,925,000 of which were issued on March 19, 2001.
Each exchange senior security will bear interest at the applicable
annual rate noted on the cover page of this prospectus. Interest will be payable
on the senior notes due 2006 on January 30 and July 30 of each year beginning on
July 30, 2001 and will be computed on the basis of a 360-day year of 30-day
months. Interest on the senior notes due 2006 will accrue from and including the
settlement date and will be paid to holders of record on the July 15 or January
15 immediately before the interest payment date. Interest will be payable on the
senior notes due 2011 on May 15 and November 15 of each year, beginning on
November 15, 2001, and will be computed on the basis of a 360-day year of 30-day
months. Interest on the senior notes due 2011 will accrue from and including the
settlement date and will be paid to holders of record on May 1 or November 1
immediately before the interest payment date. Holders of unregistered senior
securities that are accepted for exchange will be deemed to have waived the
right to receive any payment in respect of interest accrued from the date of the
last interest payment date that was made in respect of the unregistered senior
securities until the date of the issuance of the exchange senior securities.
Consequently, holders of exchange senior securities will receive the same
interest payments that they would have received had they not accepted the
exchange offer.
The 2006 senior notes will mature on January 30, 2006. The 2011 senior
notes will mature on May 15, 2011. On the maturity dates of the senior
securities, the holders will be entitled to receive 100% of the principal amount
of the applicable exchange senior securities. We may redeem the 2011 senior
notes at any time at their principal amount, plus the applicable premium and
accrued interest. The senior securities do not provide for any sinking fund.
28
The senior securities are issued in denominations of not less than
$1,000 and integral multiples thereof.
Viacom's rights and the rights of its creditors, including holders of
senior 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.
Guarantees
Viacom International will unconditionally guarantee the due and
punctual payment of the principal of, premium, if any, and any interest on the
senior securities when and as the same shall become due and payable, whether at
maturity, upon redemption, upon acceleration or otherwise. The guarantees of the
senior securities are endorsed on the senior securities.
Various federal and state fraudulent conveyance laws have been enacted
for the protection of creditors and may be utilized by a court of competent
jurisdiction to subordinate or avoid all or part of any guarantee issued by
Viacom International. The Indenture provides that in the event that the
guarantees would constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any United States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law, then the liability of Viacom International under the guarantees shall be
reduced to the extent necessary to eliminate such fraudulent transfer or
conveyance or violation under the applicable fraudulent transfer or conveyance
or similar law. Application of this clause could limit the amount which holders
of senior securities may be entitled to collect under the guarantees. Holders,
by their acceptance of the senior securities, will have agreed to such
limitations.
To the extent that a court were to find that (x) a guarantee was
incurred by Viacom International with the intent to hinder, delay or defraud any
present or future creditor or (y) Viacom International did not receive fair
consideration or reasonably equivalent value for issuing its guarantee and
Viacom International (i) was insolvent or rendered insolvent by reason of the
issuance of the guarantee, (ii) was engaged or about to engage in a business or
transaction for which the remaining assets of Viacom International constituted
unreasonably small capital to carry on its business or (iii) intended to incur,
or believed that it would incur, debts beyond its ability to pay such debts as
they matured, the court could subordinate or avoid all or part of such guarantee
in favor of Viacom International's other creditors. To the extent any guarantee
issued by Viacom International were voided as a fraudulent conveyance or held
unenforceable for any other reason, the holders of the senior securities
guaranteed by Viacom International could cease to have any claim against Viacom
International and would be creditors solely of Viacom.
We and Viacom International believe that the issuances of the
guarantees by Viacom International are not fraudulent conveyances. There can be
no assurance, however, that a court passing on such questions would reach the
same conclusions. In rendering their opinions on the validity of the senior
securities and, if applicable, the related guarantees, neither our counsel,
counsel for Viacom International nor counsel for the initial purchasers of the
unregistered senior securities will express any opinion as to federal or state
laws relating to fraudulent transfers.
Ranking
The senior securities are senior unsecured obligations of Viacom and
rank equally in right of payment with all of Viacom's other unsecured and
unsubordinated indebtedness. The guarantees on the
29
senior securities are senior unsecured obligations of Viacom International and
rank equally in right of payment with all of Viacom International's other
unsecured and unsubordinated indebtedness.
The senior securities and the guarantees are effectively subordinated
to any secured indebtedness of Viacom or Viacom International, as the case may
be, to the extent of the value of the assets securing such indebtedness. The
Indenture does not limit the amount of debt that Viacom, Viacom International or
their respective subsidiaries can incur.
In addition, both Viacom International and Viacom conduct their
operations through subsidiaries, which generate a substantial portion of their
respective operating income and cash flow. As a result, distributions or
advances from subsidiaries of Viacom and Viacom International are a major source
of funds necessary to meet their respective debt service and other obligations.
Contractual provisions, laws or regulations, as well as our subsidiaries'
financial condition and operating requirements, may limit the ability of Viacom
or Viacom International to obtain cash required to pay Viacom's debt service
obligations, including payments on the senior securities, or Viacom
International's payment obligations under the guarantees. The senior securities
will be structurally subordinated to all obligations of Viacom's subsidiaries
(other than Viacom International) including claims with respect to trade
payables. The guarantees will be structurally subordinated to all obligations of
Viacom International's subsidiaries, including claims with respect to trade
payables. This means that holders of the senior securities of Viacom will have a
junior position to the claims of creditors of Viacom's subsidiaries (other than
Viacom International) on the assets and earnings of such subsidiaries. Holders
of guarantees of Viacom International will have a junior position to the claims
of creditors of Viacom International's subsidiaries on the assets and earnings
of such subsidiaries and will have no claim by virtue of such guarantees against
Viacom or any subsidiary of Viacom that is not a subsidiary of Viacom
International.
As of March 31, 2001, our subsidiaries, other than Viacom
International, had approximately $2.3 billion of indebtedness outstanding. This
indebtedness was primarily incurred by Infinity and its subsidiaries and
Blockbuster. We own several operating subsidiaries, including Viacom
International, the guarantor of the senior securities, Infinity and Blockbuster.
Viacom International is a wholly owned subsidiary of Viacom, with approximately
$766 million of indebtedness outstanding as of March 31, 2001. Viacom
International's subsidiaries had approximately $1.4 billion of indebtedness
outstanding as of March 31, 2001.
Optional Redemption
Prior to maturity, we may redeem the 2011 senior notes at any time, at
our option, in whole or in part, on not less than 30 nor more than 60 days'
prior notice, prior to their maturity at a redemption price equal to the sum of
their principal amount, the Make-Whole Amount described below and any accrued
and unpaid interest to the date of redemption. Holders of record on a record
date that is on or prior to a redemption date will be entitled to receive
interest due on the interest payment date.
The term "Make-Whole Amount" means, the excess, if any, of (i) the
aggregate present value as of the date of the redemption of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable if redemption had not been made,
determined by discounting, on a semiannual basis, the remaining principal and
interest at the Reinvestment Rate described below (determined on the third
business day preceding the date notice of redemption is given) from the dates on
which the principal and interest would have been payable if the redemption had
not been made, to the date of redemption, over (ii) the aggregate principal
amount of the 2011 senior notes being redeemed.
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The term "Reinvestment Rate" means 0.25% for the 2011 senior notes plus
the arithmetic mean of the yields under the heading "Week Ending" published in
the most recent Federal Reserve Statistical Release H.15 under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to the
maturity, yields for the two published maturities most closely corresponding to
the maturity 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 Federal Reserve Statistical Release H.15 published prior
to the date of determination of the Make-Whole Amount will be used for purposes
of calculating the Reinvestment Rate.
The Make-Whole Amount will be calculated by an independent investment
banking institution of national standing appointed by us. If we fail to make the
appointment at least 45 business days prior to the date of redemption, or if the
institution is unwilling or unable to make the calculation, the calculation will
be made by an independent investment banking institution of national standing
appointed by the Trustee.
If the Reinvestment Rate is not available as described above, the
Reinvestment Rate will be calculated by interpolation or extrapolation of
comparable rates selected by the independent investment banking institution.
In the case of any partial redemption, selection of the 2011 senior
notes for redemption will be made by the Trustee in compliance with the
requirements of the principal U.S. national securities exchange, if any, on
which the 2011 senior notes are listed or, if they are not listed on a U.S.
national securities exchange, by lot or by such other method as the Trustee in
its sole discretion deems to be fair and appropriate. The Luxembourg Stock
Exchange has no such requirements.
Further Issues
We may from time to time without notice to, or the consent of, the
holders of a series of senior securities, create and issue further senior
securities of the same series, equal in rank to the senior securities in all
respects (or in all respects except for the payment of interest accruing prior
to the issue date of the new securities or except for the first payment of
interest following the issue date of the new securities) so that the new
securities may be consolidated and form a single series with the relevant series
of senior securities and have the same terms as to status, redemption or
otherwise as the relevant series of senior securities. In the event that we
issue additional senior securities of the same series, we will prepare a new
offering memorandum or prospectus and make a new application to list such
securities on the Luxembourg Stock Exchange.
Payment of Additional Amounts
We will, subject to the exceptions and limitations set forth below, pay
as additional interest on the senior securities such additional amounts as are
necessary in order that the net payment by us or a paying agent of the principal
of and interest on the senior securities to a holder who is a non-United States
person (as defined under this heading below), after deduction for any present or
future tax, assessment or other governmental charge of the United States or a
political subdivision or taxing authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than the amount
provided in the series of senior securities to be then due and payable;
provided, however, that the foregoing obligation to pay additional amounts shall
not apply:
(1) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the holder if
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the holder is an estate, trust, partnership or corporation, or a person
holding a power over an estate or trust administered by a fiduciary holder,
being considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having had a permanent establishment
in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled foreign
corporation with respect to the United States or a corporation that
has accumulated earnings to avoid United States federal income tax;
(d) being or having been a "10-percent shareholder" of ours as
defined in Section 871(h)(3) of the Code (as defined in "United States
Tax Considerations") or any successor provision; or
(e) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any holder that is not the sole beneficial owner of a senior
security, or a portion thereof, or that is a fiduciary or partnership, but
only to the extent that a beneficiary or settlor with respect to the
fiduciary, a beneficial owner or member of the partnership would not have
been entitled to the payment of an additional amount had the beneficiary,
settlor, beneficial owner or member received directly its beneficial or
distributive share of the payment;
(3) to any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure of the holder or any other
person to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States, or otherwise with respect to the status,
of the holder or beneficial owner of such senior security (or any
beneficiary, settlor, beneficial owner or member thereof), if compliance is
required by statute, by regulation of the United States Treasury Department
or by an applicable income tax treaty to which the United States is a
party, or by any official interpretation or ruling promulgated pursuant to
any of the foregoing, as a precondition to exemption from such tax,
assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is
imposed otherwise than by withholding by us or a paying agent from the
payment;
(5) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth
or personal property tax or similar tax, assessment or other governmental
charge;
(7) to any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of or interest
on any senior security, if such payment can be made without such
withholding by any other paying agent; or
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(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
The senior securities are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided under this heading "Payment of
Additional Amounts" and under the heading "Redemption for Tax Reasons," we shall
not be required to make any payment with respect to any tax, assessment or other
governmental charge imposed by any government or a political subdivision or
taxing authority thereof or therein.
We will also not pay additional amounts on the senior securities
o where withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26 and 27,
2000 or any law implementing or complying with, or introduced in
order to conform to, that Directive; or
o presented for payment by or on behalf of a beneficial owner who
would have been able to avoid the withholding or deduction by
presenting the relevant global note to another paying agent in a
member state of the European Union.
The European Union is currently considering a proposal for a new
directive regarding the taxation of savings income. Subject to a number of
important conditions being met, it is proposed that member states of the
European Union will be required to provide to the tax authorities of another
member state details of payments of interest or other similar income paid by a
person within its jurisdiction to an individual resident in that other member
state, subject to the right of certain member states to opt instead for a
withholding system for a transitional period in relation to these payments and
subject to the proposals not being required to be applied to the global notes.
As used under this heading, "--Payment of Additional Amounts", and
under the headings, "--Redemption for Tax Reasons" and "United States Tax
Considerations", the terms "United States" and "U.S." mean
the United States of America (including the States thereof and the District of
Columbia) and its territories, its possessions and other areas subject to its
jurisdiction, and the term "United States person" means 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 United States 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 United 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. A "non-United States person" means a person who is not a United
States person.
Redemption for Tax Reasons
If, as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, an official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date of this prospectus, we
become or, based upon a written opinion of
33
independent counsel selected by us, will become obligated to pay additional
amounts as described herein under the heading "Payment of Additional Amounts"
with respect to a series of senior securities, we may, at our option, redeem,
as a whole, but not in part, the relevant series of senior securities on not
less than 30 nor more than 60 days' prior notice, at a redemption price equal to
100% of their principal amount together with interest accrued but unpaid thereon
to the date fixed for redemption.
Merger, Consolidation or Sale of Assets
Under the terms of the Indenture, we and Viacom International generally
would be permitted to consolidate or merge with another corporation. We and
Viacom International would also be permitted to sell all or substantially all of
our assets to another person. However, neither we nor Viacom International may
take any of these actions unless all the following conditions are met:
(1) the merger, consolidation or sale of assets must not cause an
Event of Default. See "--Defaults and Remedies" below. An Event of Default
for this purpose would also include any event that would be an Event of
Default if the notice or time requirements were disregarded;
(2) the person we would merge or consolidate with or sell all or
substantially all of our assets to must be organized under the laws of the
United States or any state thereof;
(3) the person we would merge or consolidate with or sell all or
substantially all of our assets to must agree to be legally responsible for
the outstanding securities issued under the Indenture; and
(4) we or Viacom International must deliver specified certificates and
documents to the trustee.
We and Viacom International may merge or consolidate with, or sell all
or substantially all of our assets to each other or any of our Subsidiaries.
When we make reference in this section to the sale of "all or
substantially all of our assets," we mean property and assets generating
revenues representing, in the aggregate, at least 80%of our total consolidated
revenues.
Limitations on Liens
We covenant in the Indenture that we will not create, assume or permit
any Lien on any of our properties or assets, unless we secure the senior
securities at least equally and ratably to the secured Indebtedness. The
foregoing only applies to Liens that in the aggregate exceed 15% of our total
consolidated assets, reduced by the Attributable Debt related to any permitted
sale leaseback arrangement. See "--Limitations on Sale and Leaseback
Transactions" below. The restrictions do not apply to Capitalized Leases or
Indebtedness that is secured by:
(1) Liens existing, in the case of the 2006 senior notes, on January
17, 2001, and in the case of the 2011 senior notes, on May 17, 2001;
(2) Liens on any property or any Indebtedness of a person existing at
the time the person becomes a Subsidiary (whether by acquisition, merger or
consolidation);
(3) Liens in favor of us or our Subsidiaries; and
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(4) Liens existing at the time of acquisition of the assets secured
thereby and purchase money Liens.
The restrictions do not apply to extensions, renewals or replacements
of any of the foregoing types of Liens.
Limitations on Sale and Leaseback Transactions
We covenant in the Indenture that neither we nor any Restricted
Subsidiary will enter into any arrangement with any person to lease a Principal
Property (except for any arrangements that exist, in the case of the 2006 senior
notes, on January 17, 2001 and, in the case of the 2011 senior notes, on May 17,
2001; or that exist at the time any person that owns a Principal Property
becomes a Restricted Subsidiary) which has been or is to be sold by us or the
Restricted Subsidiary to the Person unless:
(1) the sale and leaseback arrangement involves a lease for a term of
not more than three years;
(2) the sale and leaseback arrangement is entered into between us and
any Subsidiary or between our Subsidiaries;
(3) we or the Restricted Subsidiary would be entitled to incur
indebtedness secured by a Lien on the Principal Property at least equal in
amount to the Attributable Debt permitted pursuant to the first paragraph
under "--Limitations on Liens" without having to secure equally and ratably
the senior securities;
(4) the proceeds of the sale and leaseback arrangement are at least
equal to the fair market value (as determined by our Board of Directors in
good faith) of the property and we apply within 180 days after the sale an
amount equal to the greater of the net proceeds of the sale or the
Attributable Debt associated with the property to (i) the retirement of
long-term debt for borrowed money that is not subordinated to the senior
securities and that is not debt to us or a Subsidiary, or (ii) the purchase
or development of other comparable property; or
(5) the sale and leaseback arrangement is entered into within 180 days
after the initial acquisition of the Principal Property subject to the sale
and leaseback arrangement.
The term "Attributable Debt," with regard to a sale and leaseback
arrangement of a Principal Property, is defined in the Indenture as an amount
equal to the lesser of: (a) the fair market value of the property (as determined
in good faith by our Board of Directors); and (b) the present value of the total
net amount of rent payments to be made under the lease during its remaining
term, discounted at the rate of interest set forth or implicit in the terms of
the lease, compounded semi-annually. The calculation of the present value of the
total net amount of rent payments is subject to adjustments specified in the
Indenture. The term "Principal Property" is defined in the Indenture to include
any parcel of our or our Restricted Subsidiaries' real property and related
fixtures or improvements located in the United States, the aggregate book value
of which on the date of determination exceeds $1.0 billion. The term "Principal
Property" does not include any telecommunications equipment or parcels of real
property and related fixtures or improvements which are determined in good faith
by our Board of Directors, not to be of material importance to our and our
Subsidiaries' total business. As of the date of this prospectus, neither we nor
any of our Subsidiaries own any Principal Property.
Defaults and Remedies
35
You have specified rights if an Event of Default occurs in respect of
the senior securities of your series, as described below. The term "Event of
Default" in respect of the senior securities of your series means any of the
following:
(1) we do not pay interest on a senior security of such series within
30 days of its due date;
(2) we do not pay the principal of or any premium on a senior security
of such series on its due date;
(3) we remain in breach of a covenant or warranty in respect of the
Indenture for 60 days after we receive a written notice of default. The
notice must be sent by either the trustee or holders of at least 25% in
principal amount of a series of outstanding senior securities;
(4) we are in default under agreements under which we have
Indebtedness outstanding in excess of $250 million in the aggregate and
which Indebtedness is due either at maturity or has been declared due prior
to maturity and remains unpaid;
(5) we fail to pay a money judgment in excess of $250 million for a
period of 60 days after it becomes final and not subject to further appeal;
or
(6) we or Viacom International file for bankruptcy, or other specified
events of bankruptcy, insolvency or reorganization occur.
If an Event of Default has occurred, the trustee or the holders of at
least 25% in principal amount of the senior securities of the affected series
may declare the entire principal amount and premium, if any, and all the accrued
interest on, the senior 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 trustee or any holder of senior 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 senior
securities of a series may also waive certain past defaults under the Indenture
on behalf of all of the holders of such series of senior 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 senior securities.
Except in cases of default, where the trustee has special duties, the
trustee is not required to take any action under the Indenture at the request of
holders unless the holders offer the trustee reasonable protection from expenses
and liability satisfactory to the trustee. If a reasonable indemnity is
provided, the holders of a majority in principal amount of a series of senior
securities may direct the time, method and place of conducting any lawsuit or
other formal legal action seeking any remedy available to the trustee. The
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.
Before holders are allowed to bypass the 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 senior securities, the following must occur:
o holders must give the trustee written notice that an Event of
Default has occurred and remains uncured;
36
o holders of at least 25% in principal amount of the outstanding
senior securities of a series must make a written request that
the trustee take action because of the default and must offer the
trustee indemnity satisfactory to the trustee against the cost
and other liabilities of taking that action;
o the 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 senior
securities of a series must not have given the trustee a
direction inconsistent with the above notice.
However, you are entitled at any time to bring a lawsuit for the
payment of money due on your senior securities on or after the due date.
We are required to furnish to the trustee an annual statement as to our
performance of our obligations under the Indenture and as to any default in such
performance. We are also required to notify the trustee of any event that is, or
after notice or lapse of time or both would become, an Event of Default.
Book Entry, Delivery and Form
Each series of senior securities will be issued in one or more fully
registered global securities which will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depository") and registered
in the name of Cede & Co., the Depository's nominee. We will not issue senior
securities in certificated form. Beneficial interests in the global securities
will be represented through book-entry accounts of financial institutions acting
on behalf of beneficial owners as direct and indirect participants in the
Depository (the "Depository Participants"). Investors may elect to hold
interests in the global securities through either the Depository (in the United
States), or Clearstream Luxembourg or Euroclear (in Europe) if they are
participants of those systems, or, indirectly, through organizations that are
participants in those systems. Clearstream Luxembourg and Euroclear will hold
interests on behalf of their participants through customers' securities accounts
in Clearstream Luxembourg's and Euroclear's names on the books of their
respective depositaries, which in turn will hold such interests in customers'
securities accounts in the depositaries' names on the books of the Depository.
At the present time, Citibank, N.A. acts as U.S. depositary for Clearstream
Luxembourg and The Chase Manhattan Bank acts as U.S. depositary for Euroclear
(the "U.S. Depositaries"). Beneficial interests in the global securities will be
held in denominations of $1,000 and integral multiples thereof. Except as set
forth below, the global securities may be transferred, in whole but not in part,
only to another nominee of the Depository or to a successor of the Depository or
its nominee.
Clearstream Luxembourg has advised us that it is incorporated under the
laws of Luxembourg as a professional depositary. Clearstream Luxembourg holds
securities for its participating organizations ("Clearstream Luxembourg
Participants") and facilitates the clearance and settlement of securities
transactions between Clearstream Luxembourg Participants through electronic
book-entry changes in accounts of Clearstream Luxembourg Participants, thereby
eliminating the need for physical movement of certificates. Clearstream
Luxembourg provides to Clearstream Luxembourg Participants, among other things,
services for safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and borrowing.
Clearstream Luxembourg interfaces with domestic markets in several countries. As
a professional depositary, Clearstream Luxembourg is subject to regulation by
the Luxembourg Monetary Institute. Clearstream Luxembourg Participants are
recognized financial institutions around the world, including underwriters,
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations and may include the initial purchasers or their
affiliates. Indirect access to Clearstream Luxembourg is also available to
others, such as banks,
37
brokers, dealers and trust companies that clear through, or maintain a custodial
relationship with, a Clearstream Luxembourg Participant either directly or
indirectly.
Distributions with respect to each series of senior securities held
beneficially through Clearstream Luxembourg will be credited to cash accounts of
Clearstream Luxembourg Participants in accordance with its rules and procedures,
to the extent received by the U.S. Depositary for Clearstream Luxembourg.
Euroclear has advised us that it was created in 1968 to hold securities
for its participants ("Euroclear Participants") and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear provides various other services, including
securities lending and borrowing and interfaces with domestic markets in several
countries. The Euroclear System is owned by Euroclear Clearance System Public
Limited Company (ECS plc) and operated through a license agreement by Euroclear
Bank S.A./N.V., a bank incorporated under the laws of the Kingdom of Belgium as
the "Euroclear operator".
The Euroclear operator holds securities and book-entry interests in
securities for participating organizations and facilitates the clearance and
settlement of securities transactions between Euroclear Participants, and
between Euroclear Participants and participants of certain other securities
intermediaries through electronic book-entry changes in accounts of such
participants or other securities intermediaries.
The Euroclear operator provides Euroclear Participants, among other
things, with safekeeping, administration, clearance and settlement, securities
lending and borrowing, and related services.
Non-participants of Euroclear may hold and transfer book-entry
interests in the securities through accounts with a direct participant of
Euroclear or any other securities intermediary that holds a book-entry interest
in the securities through one or more securities intermediaries standing between
such other securities intermediary and the Euroclear operator.
The Euroclear operator is regulated and examined by the Belgian Banking
and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System, and applicable Belgian
law (the "Terms and Conditions"). The Terms and Conditions govern transfers of
securities and cash within Euroclear, withdrawals of securities and cash from
Euroclear, and receipts of payments with respect to securities in Euroclear. All
securities in Euroclear are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
Participants, and has no record of, or relationship with, persons holding
through Euroclear Participants.
Distributions with respect to each series of senior securities held
beneficially through Euroclear will be credited to the cash accounts of
Euroclear Participants in accordance with the Terms and Conditions, to the
extent received by the U.S. Depositary for Euroclear.
Global Clearance and Settlement Procedures
Secondary market trading between Depository Participants will occur in
the ordinary way in accordance with the Depository's rules and will be settled
in immediately available funds using the Depository's Same-Day Funds Settlement
System. Secondary market trading between Clearstream Luxembourg Participants and
Euroclear Participants will occur in the ordinary way in accordance with the
38
applicable rules and operating procedures of Clearstream Luxembourg and
Euroclear and will be settled using the procedures applicable to conventional
eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through the Depository on the one hand, and directly or indirectly through
Clearstream Luxembourg or Euroclear Participants, on the other, will be effected
within the Depository in accordance with the Depository `s rules on behalf of
the relevant European international clearing system by its U. S. Depository;
however, such cross-market transactions will require delivery of instructions to
the relevant European international clearing system by the counterparty in such
system in accordance with its rules and procedures and within its established
deadlines (European time).
The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U. S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving senior securities in the Depository, and making or receiving
payment in accordance with normal procedures for same-day funds settlement
applicable to the Depository. Clearstream Luxembourg Participants and Euroclear
Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Because of time-zone differences, credits of senior securities received
in Clearstream Luxembourg or Euroclear as a result of a transaction with a
Depository Participants will be made during subsequent securities settlement
processing and dated the business day following the Depository settlement date.
Such credits, or any transactions in the senior securities settled during such
processing, will be reported to the relevant Euroclear Participants or
Clearstream Luxembourg Participants on that business day. Cash received in
Clearstream Luxembourg or Euroclear as a result of sales of senior securities by
or through a Clearstream Luxembourg Participant or a Euroclear Participant to a
Depository Participant will be received with value on the business day of
settlement in the Depository but will be available in the relevant Clearstream
Luxembourg or Euroclear cash account only as of the business day following
settlement in the Depository.
Although the Depository, Clearstream Luxembourg and Euroclear have
agreed to the foregoing procedures in order to facilitate transfers of
securities among participants of the Depository, Clearstream Luxembourg and
Euroclear, they are under no obligation to perform or continue to perform such
procedures and they may discontinue the procedures at any time.
Payment and Paying Agents
Principal of, premium, if any, and interest on the senior securities
will be payable, subject to any applicable laws and regulations, at the office
of our paying agent or paying agents that we may designate from time to time,
except that at our option, payment of interest may be made by check mailed to
the address of the person entitled thereto at the address in the security
register. We will pay interest on the senior securities on any interest payment
date to the person in whose name the senior security (or predecessor senior
security) is registered at the close of business on the regular record date for
such interest.
The corporate trust office of the trustee will be designated as our
paying agent for payments with respect to the senior securities of each series.
We may at any time designate additional paying agents or rescind the designation
of any paying agent or approve a change in the office through which any paying
agent acts, except that we will be required to maintain a paying agent in each
place of payment for the series.
39
Any money paid by us or Viacom International, as guarantor, to a paying
agent for the payment of the principal of, premium, if any, or interest on any
senior security of any series that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us or Viacom International, as guarantor, as the case may be, and the
holder of such senior security may thereafter look only to us and Viacom
International for that payment.
Meetings, Modification and Waiver
Modifications and amendments of the Indenture may be made by us, Viacom
International, as guarantor, and the trustee with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding senior
securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
holders of each outstanding senior security affected thereby, (a) change the
stated maturity of the principal of, or any installment of principal of or
interest on, any senior security or the terms of any sinking fund or analogous
payment with respect to any senior security, (b) reduce the principal amount of,
or premium or interest on, any senior security, (c) change our obligation to pay
additional amounts, (d) reduce the amount of principal of an original issue
discount senior security payable upon acceleration of the maturity thereof or
provable in bankruptcy, (e) change the place of payment where, or the coin or
currency in which, any senior security or any premium or interest thereon is
payable, (f) impair the right to institute suit for the enforcement of any
payment on or with respect to any senior security, (g) reduce the percentage in
principal amount of outstanding senior securities of any series, the consent of
whose holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults, (h) reduce the requirements contained in the Indenture for
quorum or voting, (i) change our obligation to maintain an office or agency in
the places and for the purposes required by the Indenture, or (j) reduce the
obligations of Viacom International, if any, in respect of the due and punctual
payment of any principal of, premium or interest on any senior security or any
additional amounts in respect thereof.
The holders of at least a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of the holders of all
the senior securities of that series, waive, insofar as that series is
concerned, our compliance with specified provisions of the Indenture. The
holders of not less than a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of all holders of
senior securities of that series, waive any past default under the Indenture
with respect to senior securities of that series, except a default (a) in the
payment of principal of or any premium or interest on any senior security of
such series or (b) in respect of any other provision of the Indenture that
cannot be modified or amended without the consent of the holder of each
outstanding senior security of such series affected thereby.
The Indenture provides that, in determining whether the holders of the
requisite principal amount of the outstanding senior securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of holders of senior securities for quorum purposes,
the principal amount of an original issue discount senior security that shall be
deemed to be outstanding shall be the amount that would be due and payable as of
the date of such determination upon acceleration of the maturity thereof.
The Indenture contains provisions for convening meetings of the holders
of senior securities of any or all series. A meeting may be called at any time
by the trustee, and also, upon request, by us or the holders of at least 33 1/3%
in aggregate principal amount of the outstanding senior securities of such
series, in any such case upon notice given in accordance with "Notices" below.
Except for any consent that must be given by the holder of each outstanding
senior security affected thereby, as described above, any resolution presented
at a meeting or adjourned meeting at which a quorum is present may be adopted
40
by the affirmative vote of the holders of a majority in principal amount of the
outstanding senior securities of that series; provided, however, that, except
for any consent that must be given by the holder of each outstanding senior
security affected thereby, as described above, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action that may be made, given or taken by the holders of not less than a
specified percentage in principal amount of the outstanding senior securities of
a series may be adopted at a meeting or an adjourned meeting at which a quorum
is present only by the affirmative vote of the holders of not less than such
specified percentage in principal amount of the outstanding senior securities of
that series. Any resolution passed or decision taken at any meeting of holders
of senior securities of any series duly held in accordance with the Indenture
will be binding on all holders of senior securities of that series. The quorum
at any meeting called to adopt a resolution, and at any adjourned meeting, will
be persons holding or representing a majority in principal amount of the
outstanding senior securities of a 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 that may be
given by the holders of not less than a specified percentage in principal amount
of the outstanding senior securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
senior securities of such series will constitute a quorum.
Defeasance and Covenant Defeasance
We may elect either (i) to defease and be discharged (and, if
applicable, to have Viacom International defeased and discharged) from any and
all obligations with respect to the senior securities (except as otherwise
provided in the Indenture) ("defeasance") or (ii) to be released from our
obligations with respect to certain covenants that are described in the
Indenture ("covenant defeasance"), upon the deposit with the trustee, in trust
for such purpose, of money and/or specified 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 senior 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, we must deliver to the trustee an opinion of counsel to the
effect that the holders of the senior 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.
We may exercise our defeasance option with respect to the senior
securities of any series notwithstanding our prior exercise of our covenant
defeasance option. If we exercise our defeasance option, payment of the senior
securities of such series may not be accelerated because of an event of default
and the guarantees relating to such senior securities will cease to exist. If we
exercise our covenant defeasance option, payment of the senior securities of
such series may not be accelerated by reference to any covenant from which we
are 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 senior securities of such series, in that
the required deposit in the defeasance trust is based upon scheduled cash flows
rather than market value, which will vary depending upon interest rates and
other factors.
Notices
41
Notices to holders of senior securities will be given by mail to the
addresses of such holders as they appear in the security register.
Title
We, Viacom International, as guarantor, the trustee and any agent of
us, Viacom International, as guarantor, or the trustee may treat the registered
owner of any registered senior security as the absolute owner thereof (whether
or not the senior security shall be overdue and notwithstanding any notice to
the contrary) for the purpose of making payment and for all other purposes.
Replacement of Senior Securities
We will replace any mutilated senior security at the expense of the
holders upon surrender to the trustee. We will replace senior securities that
become destroyed, lost or stolen at the expense of the holder upon delivery to
the trustee of satisfactory evidence of the destruction, loss or theft thereof.
In the event of a destroyed, lost or stolen senior security, an indemnity or
security satisfactory to us and the trustee may be required at the expense of
the holder of the senior security before a replacement senior security will be
issued.
Governing Law
The Indenture, the senior securities and the guarantees will be
governed by, and construed in accordance with, the laws of the State of New
York.
Regarding the Trustee
We and Viacom International maintain deposit accounts and banking and
borrowing relations with Citibank, N.A., the trustee under the Indenture, and
such trustee is currently a lender to us and Viacom International and certain of
our other subsidiaries. We may remove the trustee at any time with respect to
the senior securities of any series, provided that we immediately appoint a
successor trustee meeting the requirements for trustees specified in the
Indenture and provided further that no default with respect to such senior
securities has occurred and is continuing.
Certain Definitions
The following definitions are applicable to the Indenture:
"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 (a) to any
Subsidiary of such person or to any person with respect to which such
42
person is a Subsidiary or (b) specifically with respect to the production,
distribution or acquisition of motion pictures or other programming rights,
talent or publishing rights. When used with respect to Viacom, the term
"Indebtedness" also includes any obligation of Viacom International specified in
clauses (i) through (v)above to the extent that said Indebtedness is guaranteed
by Viacom.
"Lien" means any pledge, mortgage, lien, encumbrance or other security
interest.
"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 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 majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other persons performing
similar functions).
43
UNITED STATES TAX CONSIDERATIONS
This description is based on the Internal Revenue Code of 1986, as
amended to the date hereof (the "Code"), administrative pronouncements, judicial
decisions and existing and proposed Treasury Regulations, and interpretations of
the foregoing, changes to any of which subsequent to the date of this prospectus
may affect the tax consequences described herein. These statements address only
the tax consequences to holders holding senior securities as capital assets
within the meaning of Section 1221 of the Code. They do not discuss all of the
tax consequences that may be relevant to holders in light of their particular
circumstances or to holders subject to special rules, such as certain financial
institutions, insurance companies, dealers in securities or foreign currencies,
United States Holders (as defined below) whose functional currency (as defined
in Code Section 985) is not the U.S. dollar, persons holding senior securities
in connection with a hedging transaction, "straddle", conversion transaction or
other integrated transaction, traders in securities that elect to mark to
market, holders liable for alternative minimum tax or persons who have ceased to
be United States citizens or to be taxed as resident aliens. Persons considering
the purchase of the senior securities should consult their tax advisors
concerning the application of United States federal income tax laws, as well as
the laws of any state, local or foreign taxing jurisdictions, to their
particular situations.
As used in this section, a "United States Holder" means a beneficial
owner of senior securities that is for United States federal income tax purposes
a holder that is a United States person (as defined in "Description of Senior
Securities--Payment of Additional Amounts").
As used in this section, the term "United States Alien Holder" means a
beneficial owner of senior securities that is, for United States federal income
tax purposes:
o a nonresident alien individual;
o a foreign corporation;
o a nonresident alien fiduciary of a foreign estate or trust; or
o a foreign partnership one or more of the members of which is a
nonresident alien individual, a foreign corporation or a
nonresident alien fiduciary of a foreign estate or trust.
Exchange Offer
The exchange of unregistered senior securities for exchange senior
securities pursuant to the exchange offer will not be a taxable event for United
States federal income tax purposes. Accordingly, a holder will not recognize
taxable gain or loss as a result of such exchange and will have the same
adjusted tax basis and holding period in the exchange senior securities as such
holder had in the unregistered senior securities immediately before the
exchange.
Tax Consequences to United States Holders
Payments of Interest
Interest on senior securities will generally be taxable to a United
States Holder as ordinary interest income at the time it accrues or is received
in accordance with the United States Holder's method of accounting for federal
income tax purposes.
Sale, Exchange or Retirement
44
Upon the sale, exchange or retirement of senior securities, a United
States Holder will recognize gain or loss equal to the difference between the
amount realized on the sale, exchange or retirement of the senior securities and
such holder's adjusted tax basis in the senior securities. A United States
Holder's adjusted tax basis in senior securities will equal the cost of the
senior securities to such holder, subject to possible reduction by amortized
bond premium. The amount realized excludes any amounts attributable to unpaid
interest accrued between interest payment dates and not previously included in
income, which will be taxable as ordinary income. Such gain or loss will be
capital gain or loss and will be long-term capital gain or loss if at the time
of the sale, exchange or retirement the senior securities have been held for
more than one year. Under current laws, the excess of the taxpayer's net
long-term capital gains over net short-term capital losses is taxed at a lower
rate than ordinary income for certain non-corporate taxpayers. The distinction
between capital gain or loss and ordinary income or loss is also relevant for
purposes of, among other things, the limitations on the deductibility of capital
losses.
Amortizable Bond Premium
In general, if a United States Holder purchases a senior security at a
premium (that is, for an amount in excess of the amount payable upon the
maturity thereof), such holder will be considered to have purchased such senior
security with "amortizable bond premium" equal to the amount of such excess.
Such holder may elect to amortize such bond premium as an offset to interest
income, and not as a separate deduction item, as it accrues under a
constant-yield method over the remaining term of the senior security. Such
holder's tax basis in the senior security will be reduced by the amount of the
amortized bond premium. Any such election shall apply to all debt instruments
(other than instruments the interest on which is excludible from gross income)
held by the United States Holder at the beginning of the first taxable year for
which the election applies or thereafter acquired and is irrevocable without the
consent of the Internal Revenue Service. Bond premium on senior securities held
by a United States Holder who does not elect to amortize the premium will
decrease the gain or increase the loss otherwise recognized on the disposition
of the senior securities.
Market Discount
If a United States Holder purchases a senior security for less than its
principal amount, the difference will be treated as a "market discount" for U.S.
federal income tax purposes subject to a de minimus exception.
Under the market discount rules, a United States Holder will be
required to treat any principal payment on a senior security, or any gain on its
sale, exchange, retirement or other disposition, as ordinary income to the
extent of the accrued market discount which was not previously included in gross
income. If the senior security is disposed of in a non-taxable transaction
(other than a nonrecognition transaction described in section 1276 of the Code),
accrued market discount will be taxable to the United States Holder as ordinary
income as if the United States Holder had sold the senior security at its fair
market value. In addition, a United States Holder may be required to defer,
until the maturity of a senior security or its earlier disposition (including a
non-taxable transaction other than a transaction described in section 1276 of
the Code), the deduction of all or a portion of the interest expense in respect
of any indebtedness incurred or continued to purchase or carry the senior
security. Market discount will be considered to accrue on a straight-line basis
during the period from the date of acquisition to the maturity date of the
senior security, unless the United States Holder elects to accrue on a
constant-yield basis.
A United States Holder may elect to include market discount in income
as it accrues --on either a ratable or constant-yield basis. If a United States
Holder makes this election, the rules regarding the
45
treatment of gain upon the disposition of the senior security and upon the
receipt of principal payments as ordinary income and regarding the deferral of
interest deductions will not apply. If a United States Holder elects to include
market discount in income as it accrues, the election will apply to all market
discount obligations acquired during or after the first taxable year to which
the election applies. This election may not be revoked without the consent of
the Internal Revenue Service.
Tax Consequences to United States Alien Holders
Under present United States federal tax law, and subject to the
discussion below concerning backup withholding:
(a) payments of principal, interest and premium on the senior
securities by Viacom or its paying agent to any United States Alien Holder will
be exempt from the 30% United States federal withholding tax, provided that (i)
such holder does not own, actually or constructively, 10% or more of the total
combined voting power of all classes of stock of Viacom entitled to vote, (ii)
such holder is not a controlled foreign corporation related, directly or
indirectly, to Viacom through stock ownership, and (iii) the requirement to
certify such holder's non-U.S. status, as set forth in section 871(h) or section
881(c) of the Code, has been fulfilled with respect to the beneficial owner, as
discussed below;
(b) a United States Alien Holder of senior securities will not be
subject to United States federal income tax on gain realized on the sale,
exchange or retirement of such senior securities, unless (i) such holder is an
individual who is present in the United States for 183 days or more in the
taxable year of the disposition, and either the gain is attributable to an
office or other fixed place of business maintained by such individual in the
United States or, generally, such individual has a "tax home" in the United
States or (ii) such gain is effectively connected with such holder's conduct of
a trade or business in the United States (and, if an income tax treaty applies,
generally is attributable to a U.S. "permanent establishment" maintained by such
holder); and
(c) senior securities held by an individual who is not, for United
States estate tax purposes, a resident or citizen of the United States at the
time of his death will not be subject to United States federal estate tax,
provided that the individual does not own, actually or constructively, 10% or
more of the total combined voting power of all classes of stock of Viacom
entitled to vote and, at the time of such individual's death, payments with
respect to such senior securities would not have been effectively connected with
the conduct by such individual of a trade or business in the United States.
The certification requirement referred to in subparagraph (a) will be
fulfilled if the beneficial owner of senior securities certifies on Internal
Revenue Service Form W-8BEN or successor form under penalties of perjury, that
it is not a United States person and provides its name and address, and (i) such
beneficial owner files such Form W-8BEN or successor form with the withholding
agent or (ii) in the case of senior securities held on behalf of the beneficial
owners by a securities clearing organization, bank or other financial
institution holding customers' securities in the ordinary course of its trade or
business, such financial institution files with the withholding agent a
statement that it has received the Form W-8BEN or successor form from the United
States Alien Holder, furnishes the withholding agent with a copy thereof and
otherwise complies with the applicable Internal Revenue Service requirements.
Alternatively, these certification requirements will not apply if the
beneficial owner of the senior securities holds those securities directly
through a "qualified intermediary"(which is a non-U.S. office of a bank,
securities dealer or similar intermediary that has signed an agreement with the
Internal Revenue Service concerning withholding tax procedures), the qualified
intermediary has sufficient information in its files to indicate that the holder
is a United States Alien Holder and the intermediary complies with Internal
Revenue Service requirements. Special rules may apply with respect to senior
securities held by a
46
foreign partnership. Prospective investors, including foreign partnerships and
their partners and holders who hold their senior securities through a qualified
intermediary, should consult their tax advisers regarding possible reporting
requirements.
If a United States Alien Holder of senior securities is engaged in a
trade or business in the United States, and if interest on the senior securities
(or gain realized on their sale, exchange or other disposition) is effectively
connected with the conduct of such trade or business (and, if an income tax
treaty applies, generally is attributable to a U.S. "permanent establishment"
maintained by such holder), the United States Alien Holder, although exempt from
the withholding tax discussed in the preceding paragraphs, will be subject to
regular United States income tax on such effectively connected income, generally
in the same manner as if it were a United States Holder. See "Tax Consequences
to United States Holders" above. In lieu of the certificate described in the
preceding paragraph, such a holder will be required to provide to the
withholding agent a properly executed Internal Revenue Service Form W-8ECI or
successor form, as appropriate, to claim an exemption from withholding tax. In
addition, if such United States Alien Holder is a foreign corporation, it may be
subject to a 30% branch profits tax (unless reduced or eliminated by an
applicable treaty) on its earnings and profits for the taxable year attributable
to such effectively connected income, subject to certain adjustments.
Interest payments made to a United States Alien Holder will generally
be reported to such holder and to the Internal Revenue Service on Form 1042-S.
However, this reporting does not apply if such holder holds the senior
securities directly through a qualified intermediary.
Backup Withholding and Information Reporting
Under current United States federal income tax law, information
reporting requirements apply to certain payments of principal, premium, market
discount and interest made to, and to the proceeds of sales before maturity by,
non-corporate United States Holders. In addition, a 31% backup withholding tax
will apply if the noncorporate United States Holder (i) fails to furnish its
Taxpayer Identification Number ("TIN") which, for an individual, is his Social
Security Number, (ii) furnishes an incorrect TIN, (iii) is notified by the
Internal Revenue Service that it is subject to backup withholding for failure to
report interest and dividend payments, or (iv) under certain circumstances fails
to certify, under penalties of perjury, that it has furnished a correct TIN and
has not been notified by the Internal Revenue Service that it is subject to
backup withholding for failure to report interest and dividend payments. Holders
should consult their tax advisers regarding their qualification for exemption
from backup withholding and the procedure for obtaining such an exemption if
applicable.
Backup withholding will not apply to payments made on senior securities
if the certifications required by Sections 871(h) and 881(c) as described above
are received or if the exemption for qualified intermediaries discussed above
applies, provided that Viacom or its paying agent or the qualified intermediary,
as the case may be, does not have actual knowledge or reason to know that the
payee is a United States person.
Under current Treasury Regulations, payments on the sale, exchange or
other disposition of senior securities made to or through a foreign office of a
broker generally will not be subject to backup withholding. However, if such
broker is:
o a United States person;
o a controlled foreign corporation for United States federal income
tax purposes;
47
o a foreign person 50% or more of whose gross income for certain
periods is effectively connected with a United States trade or
business; or
o a foreign partnership with certain connections to the United
States;
then information reporting will be required unless the broker has in its records
documentary evidence that the beneficial owner is not a United States person and
certain other conditions are met or the beneficial owner otherwise establishes
an exemption. Backup withholding may apply to any payment that such broker is
required to report if the broker has actual knowledge or reason to know that the
payee is a United States person. Payments to or through the United States office
of a broker will be subject to backup withholding and information reporting
unless such holder certifies, under penalties of perjury, that it is not a
United States person and the payor does not have actual knowledge or reason to
know that such holder is a United States person, or such holder otherwise
establishes an exemption.
United States Alien Holders of senior securities should consult their
tax advisers regarding the application of information reporting and backup
withholding in their particular situations, the availability of an exemption
therefrom, and the procedure for obtaining such an exemption, if available. Any
amounts withheld from a payment to a United States Alien Holder under the backup
withholding rules will be allowed as a credit against such holder's United
States federal income tax liability and may entitle such holder to a refund,
provided that such holder files a United States income tax return and the
required information is furnished to the Internal Revenue Service.
48
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange senior securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange senior securities.
This prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of exchange senior securities
received in exchange for unregistered senior securities where such unregistered
senior securities were acquired as a result of market-making activities or other
trading activities. We have agreed that, for a period of 180 days after the
expiration of the exchange offer, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until 90 days after the date of this prospectus, all
dealers effecting transactions in the exchange senior securities may be required
to deliver a prospectus.
We will not receive any proceeds from any sale of exchange senior
securities by broker-dealers. Exchange senior securities received by
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the exchange senior
securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such exchange senior securities. Any broker-dealer that
resells exchange senior securities that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange senior securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of exchange senior securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
We have agreed to pay all expenses incident to the exchange offer
(including the expenses of one counsel for the holders of the unregistered
senior securities) other than commissions, discounts or concessions of any
broker-dealers and will indemnify the holders of the unregistered senior
securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
49
LEGAL MATTERS
The validity of the exchange senior securities and the guarantees will
be passed upon for Viacom and Viacom International by Shearman & Sterling, New
York, New York.
EXPERTS
Our financial statements incorporated by reference in this prospectus
from our Annual Report on Form 10-K for the year ended December 31, 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 and schedule of CBS 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 the CBS's Annual Report on Form 10-K for the year ended December 31, 1999,
have been audited by KPMG LLP, independent accountants, 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 consolidated financial statements and schedule 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 accountants, 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.
50
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 or sale is not permitted.
Subject to completion dated July 13, 2001
VIACOM INC.
OFFER TO EXCHANGE
Unregistered 6.40% Senior Notes due 2006
($3,075,000 aggregate principal amount outstanding issued January 17, 2001)
Unregistered 7.70% Senior Notes due 2010
($1,000,000 aggregate principal amount outstanding issued January 17, 2001)
Unregistered 7.875% Senior Debentures due 2030
($200,000 aggregate principal amount outstanding issued January 17, 2001)
for
6.40% Senior Notes due 2006 ($3,075,000 aggregate principal amount)
7.70% Senior Notes due 2010 ($1,000,000 aggregate principal amount)
7.875% Senior Debentures due 2030 ($200,000 aggregate principal amount)
that have been registered under the Securities Act of 1933
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
TERMS OF EXCHANGE OFFER
o The exchange offer will expire at 5:00 p.m., New York City time, on ,
2001, unless we extend the offer.
o Tenders of outstanding unregistered senior securities may be withdrawn at
any time before 5:00 p.m. on the date of expiration of the exchange offer.
o All outstanding unregistered senior securities that are validly tendered
and not validly withdrawn will be exchanged.
o The terms of the exchange senior securities to be issued are substantially
similar to the unregistered senior securities, except for being registered
under the Securities Act of 1933 and not having any transfer restrictions.
o The exchange of senior securities will not be a taxable exchange for U.S.
federal income tax purposes.
o We will not receive any proceeds from the exchange offer.
o Application has been made to list the exchange senior securities on the
Luxembourg Stock Exchange.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the senior securities to be
distributed in the exchange offer, nor have any of these organizations
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is , 2001
Each holder of an unregistered senior security wishing to accept the
exchange offer must deliver the unregistered senior securities to be exchanged,
together with the letter of transmittal that accompanies this prospectus and any
other required documentation, to the exchange agent identified in this
prospectus. Alternatively, you may effect a tender of unregistered senior
securities by book-entry transfer into the exchange agent's account at Euroclear
Bank S.A./N.A., as operator of the Euroclear System ("Euroclear"), Clearstream
Banking, societe anonyme, Luxembourg ("Clearstream Luxembourg") or The
Depository Trust Company ("DTC"). All deliveries are at the risk of the holder.
You can find detailed instructions concerning delivery in the section called
"The Exchange Offer" in this prospectus and in the accompanying letter of
transmittal.
---------------
If you are a broker-dealer that receives exchange senior securities for
your own account you must acknowledge that you will deliver a prospectus in
connection with any resale of the exchange senior securities. The letter of
transmittal accompanying this prospectus states that by so acknowledging and by
delivering a prospectus, you will not be deemed to admit that you are an
"underwriter" within the meaning of the Securities Act. You may use this
prospectus, as we may amend or supplement it in the future, for your resales of
exchange senior securities. We will make this prospectus available to any
broker-dealer for use in connection with any such resale for a period of 180
days after the date of expiration of this exchange offer.
You should rely only on the information contained in or incorporated by
reference in this prospectus. Neither we nor Viacom International has authorized
anyone to provide you with different or additional information. If anyone
provides you with different or additional information, you should not rely on
it. You should assume that the information contained or incorporated by
reference in this prospectus is accurate only as of the date of this prospectus
or the date of the document incorporated by reference. Our business, financial
condition, results of operations and prospects may have changed since then.
Neither we nor Viacom International is making an offer of the senior securities
in any jurisdiction where the offer is not permitted.
TABLE OF CONTENTS
Page
----
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS....................ii
WHERE YOU CAN FIND MORE INFORMATION...........................................iv
PROSPECTUS SUMMARY.............................................................1
SUMMARY OF THE EXCHANGE OFFER..................................................3
SUMMARY DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES..........................8
CAPITALIZATION................................................................10
SUMMARY HISTORICAL FINANCIAL DATA.............................................11
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION....................12
RATIO OF EARNINGS TO FIXED CHARGES............................................13
USE OF PROCEEDS...............................................................14
THE EXCHANGE OFFER............................................................15
DESCRIPTION OF SENIOR SECURITIES..............................................25
UNITED STATES TAX CONSIDERATIONS..............................................41
PLAN OF DISTRIBUTION..........................................................46
LEGAL MATTERS.................................................................47
EXPERTS.......................................................................47
---------------
References to "Viacom," "we," "us" and "our" in this prospectus are
references to Viacom Inc. References to "Viacom International" are references to
Viacom International Inc. References to "$" and "dollars" are to United States
dollars.
Whenever we refer in this prospectus to the 6.40% senior notes due 2006
issued on January 17, 2001, the 7.70% senior notes due 2010 issued on January
17, 2001 or the 7.875% senior debentures due 2030 issued on January 17, 2001, we
will refer to them as the "unregistered 2006 senior notes", the "unregistered
2010 senior notes", or the "unregistered senior debentures", respectively, and
collectively as the "unregistered senior securities". Whenever we refer in this
prospectus to the registered 6.40% senior notes due 2006, 7.70% senior notes due
2010 or 7.875% senior debentures due 2030, we will refer to them as the
"exchange 2006 senior notes", the "exchange 2010 senior notes" or the "exchange
senior debentures", respectively, and collectively as the "exchange senior
securities". The unregistered 2006 senior notes and the exchange 2006 senior
notes are collectively referred to as the "2006 senior notes", the unregistered
2010 senior notes and the exchange 2010 senior notes are collectively referred
to as the "2010 senior notes" and the unregistered senior debentures and the
exchange senior debentures are collectively referred to as the "senior
debentures". The unregistered senior securities and the exchange senior
securities are collectively referred to as the "senior securities".
i
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into this
prospectus contain both historical and forward-looking statements. All
statements other than statements of historical fact are, or may be deemed to be,
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Securities Exchange Act of 1934. These
forward-looking statements are not based on historical facts, but rather reflect
our current expectations concerning future results and events. These
forward-looking statements generally can be identified by the use of statements
that include phrases such as "believe," "expect," "anticipate," "intend,"
"plan," "foresee," "likely," "will" or other similar words or phrases.
Similarly, statements that describe our objectives, plans or goals are or may be
forward-looking statements. These forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance or achievements to be different from any future results,
performance and achievements expressed or implied by these statements. You
should review carefully all information, including the financial statements and
the notes to the financial statements, included or incorporated by reference
into this prospectus.
The following important factors, among others, could affect our future
results, causing these results to differ materially from those expressed in our
forward-looking statements:
o We derive substantial revenues from the sale of advertising time on
our over-the-air networks, basic cable networks, television stations,
radio stations and outdoor businesses. The advertising market has
recently experienced softness. The sale of advertising time is
affected by viewer demographics, viewer ratings and market conditions
for advertising time. Adverse changes to any of these factors could
have a negative effect on revenues.
o Operating results derived from our motion picture and television
production fluctuate depending primarily upon cost of such productions
and acceptance of such productions by the public, which are difficult
to predict. Motion picture and television production has experienced
cycles in which increased costs of talent and other factors have
resulted in higher production costs. In addition, the commercial
success of our motion picture and television productions also depends
upon the quality and acceptance of other competing productions, and
the availability of alternative forms of entertainment and leisure
time activities.
o Our operating results also fluctuate due to the timing and
availability of theatrical and home video releases, as well as a
result of the recording of license fees for television exhibition of
motion pictures and for syndication and basic cable exhibition of
television programming in the period that the products are available
for such exhibition.
o Our basic cable network and premium subscription television networks
are dependent on affiliation agreements with cable and direct
broadcast satellite distributors on acceptable terms. The loss of
carriage on such distributors, or continued carriage on less favorable
terms, could adversely affect, with respect to basic cable networks,
revenues from subscribers fees and the ability to sell advertising
time, and with respect to premium subscription television networks,
subscribers fee revenues.
o Some of our businesses are seasonal. More specifically, the home video
business and consumer publishing business are subject to increased
periods of demand coinciding with summer and winter holidays, while a
substantial majority of the theme parks operating income is generated
from May through September. In addition, the home video and theme
parks businesses' revenues are influenced by weather.
ii
o Changes in FCC laws and regulations could, directly or indirectly,
adversely affect the operations and ownership of our properties.
o We have contingent liabilities related to discontinued operations,
including environmental liabilities and pending litigation. While
there can be no assurance in this regard, the pending or potential
litigation, environmental and other liabilities should not have a
material adverse effect on us.
o We may be adversely affected by changes in technology and its effect
on competition in our markets.
o Labor agreements covering the services of actors whom we utilize in
our motion picture and television businesses are currently scheduled
to expire during 2001. Work stoppages and/or higher costs in
connection with these agreements could adversely impact our ability to
produce or acquire new programming.
o Other economic, business, competitive and/or regulatory factors
affecting our businesses generally.
These factors are not necessarily all of the important factors that
could cause actual results to differ materially from those expressed in any of
our forward-looking statements. Other unknown or unpredictable factors also
could have material adverse effects on our future results. The forward-looking
statements included in this prospectus are made only as of the date of this
prospectus and under Section 27A of the Securities Act and Section 21E of the
Exchange Act and we do not have any obligation to publicly update any
forward-looking statements to reflect subsequent events or circumstances. We
cannot assure you that projected results or events will be achieved.
iii
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 we file at
the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site 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 also is available at the New York
Stock Exchange. In accordance with U.S. securities laws, Viacom International is
not obligated to file annual, quarterly and current reports, proxy statements
and other information with the SEC. Accordingly, Viacom International does not
file separate financial statements with the SEC and does not independently
publish its financial statements. Viacom International's financial condition,
results of operations and cash flows are consolidated into the financial
statements of Viacom.
We are "incorporating by reference" specified documents that we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents that are considered part of this prospectus.
Later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 by us until the exchange offer is
completed.
o Our Annual Report on Form 10-K for the year ended December 31,
2000.
o Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2001.
o 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
January 5, 2001, January 8, 2001, February 15, 2001, February
21, 2001, May 30, 2001, June 1, 2001 and July 3, 2001.
o Our definitive Proxy Statement dated April 16, 2001.
o CBS Corporation Annual Report on Form 10-K for the year ended
December 31, 1999, as amended on April 28, 2000.
o The consolidated financial statements of Infinity Broadcasting
Corporation, as set forth in Item 8 and the notes thereto to
Infinity's Annual Report on Form 10-K for the year ended
December 31, 1999.
o The condensed 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.
o Our Registration Statement on Form S-4 dated January 12, 2001.
iv
You may obtain a copy of these filings at no cost, by writing or
telephoning us at the following address:
Viacom Inc.
1515 Broadway
52nd Floor
New York, New York 10036
Attn: Investor Relations
Telephone Number: (212) 258-6000
In addition, copies of all documents that we incorporate into this
prospectus by reference may be obtained free of charge at the offices of
Kredietbank S.A. Luxembourgeoise, 43, Boulevard Royal, L-2955 Luxembourg, our
Luxembourg paying and transfer agent.
v
PROSPECTUS SUMMARY
The following summary highlights selected information from this
prospectus and does not contain all of the information that you should consider
before participating in this exchange offer. You should read the entire
prospectus, accompanying letter of transmittal and documents incorporated by
reference carefully.
THE COMPANY
We, together with our subsidiaries, are a diversified worldwide
entertainment company with operations in six segments: Cable Networks,
Television, Infinity, Entertainment, Video and Publishing. 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 NETWORK,TM CMT:
COUNTRY MUSIC TELEVISIONTM and BET: BLACK ENTERTAINMENT TELEVISION(R), among
other program services. The Television segment consists of CBS(R) and UPN(R)
television networks, 39 owned broadcast television stations and Viacom's
television production and syndication business, including KING WORLD
PRODUCTIONS(TM) and PARAMOUNT TELEVISION(TM). The Infinity segment operates
approximately 184 radio stations through INFINITY BROADCASTING(R) and outdoor
advertising properties through INFINITY OUTDOOR(TM) and TDI(R). The
Entertainment segment includes PARAMOUNT PICTURES(R), which produces and
distributes theatrical motion pictures; PARAMOUNT PARKS(R), which owns and
operates five theme parks and a themed attraction in the United States and
Canada; and movie theater and music publishing operations. The Video segment
consists of an approximately 82% equity interest in Blockbuster Inc., which
operates and franchises BLOCKBUSTER(R) video stores worldwide. 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(TM),
SCRIBNER(R) and THE FREE PRESS(TM). We were organized under the laws of the
State of Delaware in 1986. Viacom's principal offices are located at 1515
Broadway, New York, New York 10036 and our telephone number is (212) 258-6000.
THE GUARANTOR
Viacom International, the guarantor of the senior securities, was
organized under the laws of the State of Delaware in 1995 and has its corporate
headquarters at 1515 Broadway, New York, New York 10036. Viacom International
has 100 shares of common stock outstanding, all of which are held by Viacom. The
operating assets of Viacom International and its subsidiaries include MTV: MUSIC
TELEVISION(R), SHOWTIME(R), NICKELODEON(R), NICK AT NITE(R), VH1 MUSIC FIRST(R),
TV LAND(R), approximately 18 broadcast television stations, all interests in the
businesses of the Video, Entertainment and Publishing segments and certain
related Internet sites.
1
CERTAIN SUBSIDIARIES
Viacom has one subsidiary, Blockbuster, Inc., which is subject to the
reporting requirements of the Exchange Act. Blockbuster, incorporated under the
laws of the State of Delaware in 1989, has its corporate headquarters at 1201
Elm Street, Dallas, Texas 75270. As of March 31, 2001, Blockbuster had
31,014,696 shares of Class A common stock and 144,000,000 shares of Class B
common stock outstanding. Blockbuster is a retailer of rentable home
videocassettes, DVDs and video games, and has stores throughout the United
States and in many other countries. Blockbuster operates primarily under the
Blockbuster brand name. Blockbuster's financial condition, results of operations
and cash flows are consolidated into the financial statements of Viacom. We own
all of Blockbuster's Class B common stock representing an approximately 82%
equity interest in Blockbuster.
RECENT DEVELOPMENTS
As a result of Viacom's merger with CBS Corporation on May 4, 2000,
Viacom acquired an approximate 64.2% equity interest in Infinity Broadcasting
Corporation. On February 21, 2001, Infinity merged with and into a wholly owned
subsidiary of Viacom. In connection with the Viacom/Infinity merger, Viacom
issued 0.592 of a share of its Class B common stock for each issued and
outstanding share of Infinity Class A common stock resulting in the issuance of
approximately 232 million shares of Viacom Class B common stock.
On November 3, 2000, Viacom announced an agreement to acquire BET
Holdings II, Inc., which operates the BET: BLACK ENTERTAINMENT TELEVISION(R)
cable networks. On January 23, 2001, we completed our acquisition of BET for a
total purchase price of approximately $3.0 billion, which principally represents
the issuance of approximately 43.4 million shares of Viacom Class B common stock
and the assumption by Viacom of approximately $590 million in debt.
2
SUMMARY OF THE EXCHANGE OFFER
On January 17, 2001, we issued $400 million aggregate principal amount
of unregistered 6.40% senior notes due 2006, $500 million aggregate principal
amount of unregistered 7.70% senior notes due 2010 and $750 million aggregate
principal amount of unregistered 7.875% senior debentures due 2030. The
unregistered senior securities are unconditionally guaranteed as to payment of
principal and interest by Viacom International. The exchange senior securities
will be our obligations and will be entitled to the benefits of the indenture
and supplemental indentures relating to the unregistered senior securities. The
exchange senior securities will also be unconditionally guaranteed as to payment
of principal and interest by Viacom International. The form and terms of the
exchange senior securities are identical in all material respects to the form
and terms of unregistered senior securities, except that the exchange senior
securities have been registered under the Securities Act, and therefore will
contain no restrictive legends. For additional information on the terms of the
exchange offer, see "The Exchange Offer."
The Exchange Offer................ We are offering to exchange $1,000 principal
amount of:
o 6.40% senior notes due 2006 which
have been registered under the
Securities Act of 1933 for each
$1,000 principal amount of our
outstanding unregistered 2006
senior notes that were issued on
January 17, 2001. As of the date of
this prospectus, $3,075,000 in
aggregate principal amount of our
unregistered 2006 senior notes are
outstanding;
o 7.70% senior notes due 2010 which
have been registered under the
Securities Act of 1933 for each
$1,000 principal amount of our
outstanding unregistered 2010
senior notes that were issued on
January 17, 2001. As of the date of
this prospectus, $1,000,000 in
aggregate principal amount of our
unregistered 2010 senior notes are
outstanding; and
o 7.875% senior debentures due 2030
which have been registered under
the Securities Act of 1933 for each
$1,000 principal amount of our
outstanding unregistered 2030
senior debentures that were issued
on January 17, 2001. As of the date
of this prospectus, $200,000 in
aggregate principal amount of our
unregistered senior debentures are
outstanding.
Expiration of Exchange
Offer........................... The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2001, unless we
decide to extend the expiration date.
3
Conditions of the Exchange
Offer........................... We will not be required to accept for
exchange any unregistered senior securities,
and we may amend or terminate the exchange
offer if any of the following conditions or
events occurs:
o the exchange offer, or the making
of any exchange by a senior
security holder, violates
applicable law or any applicable
interpretation of the staff of the
SEC;
o any action or proceeding shall have
been instituted or threatened with
respect to the exchange offer
which, in our judgment or the
judgment of Viacom International,
would impair our ability to proceed
with the exchange offer; and
o any law, rule or regulation or
applicable interpretations of the
staff of the SEC have been issued
or promulgated which, in our good
faith determination or the good
faith determination of Viacom
International, does not permit us
to effect the exchange offer.
We will give oral or written notice of any
non-acceptance, amendment or termination to
the registered holders of the unregistered
senior securities as promptly as
practicable. We reserve the right to waive
any conditions of the exchange offer.
Resale of Exchange Senior
Securities...................... Based on interpretative letters of the SEC
staff to third parties unrelated to us, we
believe that you can resell and transfer the
exchange senior securities you receive
pursuant to this exchange offer, without
compliance with the registration and
prospectus delivery provisions of the
Securities Act, provided that:
o any exchange senior securities to
be received by you will be acquired
in the ordinary course of your
business;
o you are not engaged in, do not
intend to engage in and have no
arrangement or understanding with
any person to participate in the
distribution of the unregistered
senior securities or exchange
senior securities;
o you are not an "affiliate" (as
defined in Rule 405 under the
Securities Act) of Viacom or Viacom
International or, if you are such
an affiliate, you will comply with
the registration and prospectus
delivery requirements of the
Securities Act to the extent
applicable;
o if you are a broker-dealer, you
have not entered into any
arrangement or understanding with
Viacom or Viacom International or
any "affiliate" of Viacom or Viacom
International (within the meaning
of Rule 405 under the Securities
Act) to distribute the exchange
4
senior securities;
o if you are a broker-dealer, you
will receive exchange senior
securities for your own account in
exchange for unregistered senior
securities that were acquired as a
result of market-making activities
or other trading activities and
that you will deliver a prospectus
in connection with any resale of
such exchange senior securities;
and
o you are not acting on behalf of any
person or entity that could not
truthfully make these
representations.
If you wish to accept the exchange offer,
you must represent to us that these
conditions have been met.
If our belief is inaccurate and you transfer
any exchange senior security without
delivering a prospectus meeting the
requirements of the Securities Act or
without an exemption from registration under
the Securities Act, you may incur liability
under the Securities Act. We do not assume
or indemnify you against such liability, but
we do not believe that any such liability
should exist.
Accrued Interest on the
Exchange Senior Securities
and Unregistered Senior
Securities...................... The exchange senior securities will accrue
interest from the date interest was last
paid on the unregistered senior securities.
If no interest was paid on your unregistered
senior securities, your exchange senior
securities will accrue interest from and
including January 17, 2001. We will pay
interest on the exchange senior securities
semi-annually on January 30 and July 30 of
each year, except that there was no January
30, 2001 interest payment date for the 2006
senior notes.
Holders of unregistered senior securities
that are accepted for exchange will be
deemed to have waived the right to receive
any payment in respect of interest accrued
from the date of the last interest payment
date that was made in respect of the
unregistered senior securities until the
date of the issuance of the exchange senior
securities. Consequently, holders of
exchange senior securities will receive the
same interest payments that they would have
received had they not accepted the exchange
offer.
Procedures for Tendering
Unregistered Senior
Securities...................... If you wish to participate in the exchange
offer, you must transmit a properly
completed and signed letter of transmittal,
and all other documents required by the
letter of transmittal, to the exchange agent
at the address set forth in the letter of
transmittal. These materials must be
received by the exchange
5
agent before 5:00 p.m., New York City time,
on , 2001, the expiration date of the
exchange offer. You must also provide:
o a confirmation of any book-entry
transfer of unregistered senior
securities tendered electronically
into the exchange agent's account
with DTC, Euroclear or Clearstream
Luxembourg. You must comply with
DTC's, Euroclear's or Clearstream
Luxembourg's respective standard
operating procedures for electronic
tenders, by which you will agree to
be bound in the letter of
transmittal; or
o physical delivery of your
unregistered senior securities to
the exchange agent's address as set
forth in the letter of transmittal.
The letter of transmittal must also contain
the representations you must make to us as
described under "The Exchange
Offer--Procedures for Tendering."
Special Procedures for
Beneficial Owners............... If you are a beneficial owner of
unregistered senior securities that are held
through a broker, dealer, commercial bank,
trust company or other nominee and you wish
to tender such unregistered senior
securities, you should contact the person
promptly and instruct the person to tender
your unregistered senior securities on your
behalf.
Guaranteed Delivery Procedures
for Unregistered Senior
Securities...................... If you cannot meet the expiration deadline,
or you cannot deliver your unregistered
senior securities, the letter of transmittal
or any other required documentation, or
comply with DTC's, Euroclear's or
Clearstream Luxembourg's respective standard
operating procedures for electronic tenders
on time, you may tender your unregistered
senior securities according to the
guaranteed delivery procedures set forth
under "The Exchange Offer-Guaranteed
Delivery Procedures."
Withdrawal Rights................. You may withdraw the tender of your
unregistered senior securities at any time
prior to 5:00 p.m., New York City time,
on , 2001, the expiration date.
Consequences of Failure to
Exchange........................ If you are eligible to participate in this
exchange offer and you do not tender your
unregistered senior securities as described
in this prospectus, your unregistered senior
securities will continue to be subject to
restrictions on transfer. As a result of the
restrictions on transfer and the
availability of exchange senior securities,
the unregistered senior securities are
likely to be much less liquid than before
the exchange offer. The unregistered senior
securities will, after the exchange offer,
6
bear interest at the same rate as the
exchange senior securities.
Certain U.S. Federal Income
Tax Consequences................ The exchange of the unregistered senior
securities for exchange senior securities
pursuant to the exchange offer will not be a
taxable exchange for U.S. federal income tax
purposes.
Use of Proceeds................... We will not receive any proceeds from the
issuance of exchange senior securities
pursuant to the exchange offer.
Exchange Agents for
Unregistered Senior
Securities...................... Citibank, N.A., the trustee under the
indenture for the unregistered senior
securities, is serving as the principal
exchange agent in connection with the
exchange offer. Citibank can be reached at
111 Wall Street, 15th Floor, New York, New
York 10005; its telephone number is (800)
422-2066 and its facsimile number is (212)
825-3483.
Kredietbank S.A. Luxembourgeoise, our
Luxembourg listing, paying and transfer
agent, will also act as Luxembourg exchange
agent. In its capacity as Luxembourg
exchange agent, Kredietbank will act solely
as an intermediary between Citibank, as the
principal exchange agent, and holders of
unregistered senior securities wishing to
accept the exchange offer. Kredietbank will
forward the tenders it receives to the
principal exchange agent. Kredietbank can be
reached at 43, Boulevard Royal, L-2955
Luxembourg; its telephone number is (352) 47
97 3933 and its facsimile number is (352) 47
97 73 951.
7
SUMMARY DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES
The following summarized description of the exchange senior securities
is subject to a number of important exceptions and qualifications. For
additional information on the terms of the exchange senior securities, see
"Description of Senior Securities."
Exchange Senior Securities........ o $3,075,000 aggregate principal
amount of registered 6.40% senior
notes due 2006.
o $1,000,000 aggregate principal
amount of registered 7.70% senior
notes due 2010.
o $200,000 aggregate principal amount
of registered 7.875% senior
debentures due 2030.
Further Issuance.................. The unregistered 2006 senior notes will be,
upon their exchange for exchange 2006 senior
notes registered under the Securities Act, a
further issuance of our 6.40% senior notes
due 2006, $396,925,000 of which were issued
on March 19, 2001. The unregistered 2010
senior notes will be, upon their exchange
for exchange 2010 senior notes registered
under the Securities Act, a further issuance
of our 7.70% senior notes due 2010,
$1,150,000,000 of which were issued on
August 1, 2000 and $499,000,000 of which
were issued on March 19, 2001. The
unregistered senior debentures will be, upon
their exchange for exchange senior
debentures registered under the Securities
Act, a further issuance of our 7.875% senior
debentures due 2030, $500,000,000 of which
were issued on August 1, 2000 and
$749,800,000 of which were issued on March
19, 2001.
Maturity Dates.................... o January 30, 2006 for the exchange
2006 senior notes.
o July 30, 2010 for the exchange 2010
senior notes.
o July 30, 2030 for the exchange
senior debentures.
Interest Payment Dates............ January 30 and July 30 of each year,
beginning on the interest payment date
immediately following the last interest
payment date for which interest was paid on
unregistered senior securities which were
exchanged pursuant to the exchange offer,
except that there was no January 30, 2001
interest payment date for the 2006 senior
notes.
Optional Redemption............... The exchange 2010 senior notes and the
exchange senior debentures are redeemable at
our option, in whole or in part, at any
time. The redemption price is the principal
amount of the exchange senior securities
redeemed, plus accrued and unpaid interest,
plus a make-whole premium based on a
discount rate of 25 basis points, in the
case of the exchange 2010 senior
8
notes, and 35 basis points, in the case of
the exchange senior debentures, over an
appropriate treasury rate.
Covenants......................... The indenture governing the exchange senior
securities contains covenants that, among
other things, limit our ability to:
o create certain liens;
o enter into certain sale and
leaseback transactions; and
o consolidate, merge or sell all or
substantially all of our assets,
unless certain conditions are met.
Events of Default................. The indenture provides for events of
default, subject to applicable cure periods,
including:
o we do not pay interest on a senior
security within 30 days of its due
date;
o we do not pay the principal of or
any premium on a senior security on
its due date;
o we remain in breach of a covenant
or warranty in respect of the
indenture for 60 days after we
receive a written notice of
default. The notice must be sent by
either the trustee or holders of at
least 25% in principal amount of a
series of outstanding senior
securities;
o we are in default under agreements
under which we have indebtedness
outstanding in excess of $250
million in the aggregate and which
indebtedness is due either at
maturity or has been declared due
prior to maturity and remains
unpaid;
o we fail to pay a money judgment in
excess of $250 million for a period
of 60 days after it becomes final
and not subject to further appeal;
or
o we or Viacom International file for
bankruptcy, or other specified
events of bankruptcy, insolvency or
reorganization occur.
Trustee........................... Citibank, N.A.
Listing........................... Application has been made to list the
exchange senior securities on the Luxembourg
Stock Exchange.
9
CAPITALIZATION
The following table sets forth our capitalization as of March 31, 2001:
o on a historical basis, as reported by Viacom and
o on a pro forma basis to reflect the issuance and sale of
unregistered 6.40% senior notes due 2006 and unregistered
6.625% senior notes due 2011 on May 17, 2001, the issuance and
sale of registered 7.25% senior notes due 2051 on June 27,
2001, and the application of the net proceeds from the sale of
these senior notes to the repayment of outstanding commercial
paper indebtedness.
We will not receive any proceeds from this exchange offer.
At March 31, 2001(1)
(Unaudited)
----------------------------------
Historical Pro Forma
---------- ---------
(in millions, except per share
amounts)
Long-term Debt:
Continuing operations:
Notes payable to banks (including commercial paper)................... $ 4,532 $ 2,815
Senior notes and debentures (6.75% - 10.50%, due 2002-2030) .......... 6,953 6,953
Senior subordinated notes (8.875%-10.25%, due 2001-2007).............. 564 564
Subordinated exchange debentures (11.375%, due 2009).................. 39 39
Other ................................................................ 42 42
Obligations under capital leases...................................... 508 508
6.40% senior notes due 2006 .......................................... 399 805
6.625% senior notes due 2011 ......................................... --- 993
7.25% senior notes due 2051 .......................................... --- 335
---------- ---------
Total debt...................................................... 13,037 13,054
---------- ---------
Stockholders' Equity:
Class A common stock, par value $.01 per share; 500 shares
authorized; 139 shares issued(1)...................................... 1 1
Class B common stock, par value $.01 per share; 3,000 shares
authorized; 1,689 shares issued(1).................................... 17 17
Additional paid-in capital................................................. 64,726 64,726
Retained earnings.......................................................... 1,425 1,425
Accumulated other comprehensive loss....................................... (201) (201)
Less: Treasury stock....................................................... (2,510) (2,510)
---------- ---------
Total stockholders' equity...................................... 63,458 63,458
---------- ---------
Total capitalization............................................ $ 76,495 $ 76,512
========== =========
- ---------------
(1) Except as set forth above and except as otherwise disclosed in any
documents incorporated herein by reference, there has been no material
change in the total capitalization of Viacom since March 31, 2001.
10
SUMMARY HISTORICAL FINANCIAL DATA
The summary consolidated financial data presented below have been
derived from, and should be read together with, our audited consolidated
financial statements and the accompanying notes included in our annual report on
Form 10-K for the year ended December 31, 2000 and the unaudited interim
consolidated financial statements and the accompanying notes included in our
quarterly report on Form 10-Q for the quarter ended March 31, 2001, both of
which are incorporated by reference into this prospectus.
Three Months
Ended March 31,
(Unaudited) Year Ended December 31,
-------------------- ----------------------------------------------------------
2001(a) 2000 2000(a) 1999 1998 1997 1996
------- ------ ------- ---- ---- ---- ----
(in millions, except per share amounts)
Statement of Operations Data:
Revenues ............................... $ 5,752 $ 3,026 $ 20,044 $ 12,859 $12,096 $ 10,685 $ 9,684
Depreciation............................ 214 135 800 497 442 447 331
Amortization of intangibles............. 531 95 1,424 348 336 325 323
Operating income........................ 404 240 1,321 1,247 752 685 1,197
Earnings (loss) from continuing
operations ............................. (7) 68 (364) 372 (44) 374 152
Net earnings (loss)..................... (7) (384) (816) 334 (122) 794 1,248
Net earnings (loss) attributable to
common stock........................... (7) (384) (816) 322 (150) 734 1,188
Earnings (loss) per common share:
Basic:
Earnings (loss) from continuing
operations......................... $ __ $ 0.10 $ (0.30) $ 0.52 $ (0.10) $ 0.44 $ 0.13
Net earnings (loss)................ $ __ $ (0.55) $ (0.67) $ 0.46 $ (0.21) $ 1.04 $ 1.63
Diluted:
Earnings (loss) from continuing
operations......................... $ __ $ 0.10 $ (0.30) $ 0.51 $ (0.10) $ 0.44 $ 0.13
Net earnings (loss)................ $ __ $ (0.54) $ (0.67) $ 0.45 $ (0.21) $ 1.04 $ 1.62
Weighted average shares outstanding:
Basic.............................. 1,628 695 1,225 695 709 706 728
Diluted............................ 1,628 711 1,225 710 709 709 735
Other Data:
EBITDA(b)............................... $1,149 $ 470 $ 3,544 $ 2,092 $ 1,530 $ 1,457 $ 1,851
At December 31,
At March 31, 2001 --------------------------------------------------------
(Unaudited)(a) 2000(a) 1999 1998 1997 1996
----------------- -------- ---- ---- ---- ----
(in millions)
Balance Sheet Data:
Cash and cash equivalents............... $ 948 $ 935 $ 681 $ 767 $ 292 $ 209
Intangibles, net........................ 71,867 62,004 11,479 11,557 14,700 14,894
Total assets............................ 92,550 82,646 24,486 23,613 28,289 28,834
Long-term debt, net of current portion.. 12,887 12,474 5,698 3,813 7,423 9,856
Stockholders' equity ................... 63,458 47,967 11,132 12,050 13,384 12,587
- ---------------
(a) Includes financial information for CBS Corporation from May 4, 2000, the
date of its merger with and into Viacom. Accordingly, operating results and
financial position are not necessarily comparable on a year-to-year basis.
(b) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. We believe that
EBITDA is an appropriate measure for evaluating our operating performance.
However, EBITDA should be considered in addition to, not as a substitute
for or superior to, operating income, net earnings, cash flow and other
measures of financial performance prepared in accordance with generally
accepted accounting principles. As EBITDA is not a measure of performance
calculated in accordance with generally accepted accounting principles,
this measure may not be comparable to similarly titled measures employed by
other companies.
11
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following summary unaudited pro forma combined financial
information is based upon the historical financial statements of Viacom,
adjusted for the Viacom/CBS merger, BET acquisition, Viacom/Infinity merger and
certain other transactions. The unaudited pro forma combined condensed statement
of operations data for the three months ended March 31, 2001 and the year ended
December 31, 2000 is presented as if the above transactions had occurred on
January 1, 2000.
The summary unaudited pro forma combined condensed financial data is
for illustrative purposes only and does not necessarily indicate the operating
results that would have been achieved had the Viacom/CBS merger, BET
acquisition, Viacom/Infinity merger and certain other transactions been
completed as of the dates indicated or of the results that may be obtained in
the future. In addition, the data does not reflect synergies that might be
achieved from combining these operations.
Unaudited Pro Forma Combined Statement of Operations Data
Three Months
Ended Year Ended
March 31, December 31,
2001 2000
--------------- -----------------
Statement of Operations Data: (in millions, except per share
amounts)
Revenues .............................................................. $ 5,768 $ 23,620
Operating income....................................................... 378 1,908
Earnings from continuing operations before income taxes................ 121 971
Loss from continuing operations........................................ (30) (189)
Basic and diluted loss from continuing operations per share............ (0.02) (0.11)
Basic and diluted weighted average shares outstanding.................. 1,770 1,774
Other Data:
EBITDA(a) ............................................................. $ 1,154 $ 5,047
- ---------------
(a) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. We believe that
EBITDA is an appropriate measure for evaluating our operating performance.
However, EBITDA should be considered in addition to, not as a substitute
for or superior to, operating income, net earnings, cash flow and other
measures of financial performance prepared in accordance with generally
accepted accounting principles. As EBITDA is not a measure of performance
calculated in accordance with generally accepted accounting principles,
this measure may not be comparable to similarly titled measures employed by
other companies.
12
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The ratio of earnings to fixed charges for Viacom are set forth below,
on a pro forma basis, for the three months ended March 31, 2001 and the year
ended December 31, 2000 to give effect to the Viacom/CBS merger, BET
acquisition, Viacom/Infinity merger and certain other transactions, as if the
transactions each occurred on January 1, 2000, and on a historical basis for the
three months ended March 31, 2001 and for each year in the five-year period
ended December 31, 2000.
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.
Three Months Ended Year Ended December 31,
March 31, 2001 Viacom Historical
---------------------- 2000 ---------------------------------------------
Historical Pro Forma Pro Forma 2000 1999 1998 1997 1996
---------- --------- --------- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed
Charges............... 1.5x 1.4x 1.2x 1.5x 2.2x 1.1x 2.0x 1.4x
13
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In
consideration for issuing the exchange senior securities contemplated by this
prospectus, we will receive unregistered senior securities from you in like
principal amount. The unregistered senior securities surrendered in exchange for
the exchange senior securities will be retired and canceled and cannot be
reissued. Accordingly, issuance of the exchange senior securities will not
result in any change in our indebtedness.
14
THE EXCHANGE OFFER
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and in the accompanying letter of transmittal, we are offering to
exchange $1,000 principal amount of exchange senior securities for each $1,000
principal amount of unregistered senior securities. You may tender some or all
of your unregistered senior securities only in integral multiples of $1,000. As
of the date of this prospectus, $3,075,000 aggregate principal amount of the
unregistered 2006 senior notes, $1,000,000 aggregate principal amount of the
unregistered 2010 senior notes and $200,000 aggregate principal amount of the
unregistered senior debentures are outstanding.
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act and,
therefore, the certificates for the exchange senior securities will not bear
legends restricting their transfer. The exchange senior securities will be
issued under and be entitled to the benefits of the Indenture, dated as of May
15, 1995, among us, our wholly owned subsidiary, Viacom International, as
guarantor, and Citibank, N.A., as successor to State Street Bank and Trust
Company and The First National Bank of Boston, Trustee. The Indenture was
supplemented by the First Supplemental Indenture, dated as of May 24, 1995, was
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1, dated as of December 15, 1995, was supplemented by the Third Supplemental
Indenture, dated as of July 22, 1996, was supplemented by the Fourth
Supplemental Indenture, dated as of August 1, 2000, was supplemented, in
connection with the issuance of the unregistered senior securities, by the Fifth
Supplemental Indenture, dated as of January 17, 2001, was supplemented by the
Sixth Supplemental Indenture, dated as of May 17, 2001 and was supplemented by
the Seventh Supplemental Indenture, dated as of May 31, 2001. We refer to the
Indenture, as so supplemented and amended, as the "Indenture."
In connection with the issuance of the unregistered senior securities,
we arranged for the unregistered senior securities to be issued and transferable
in book-entry form through the facilities of Euroclear, Clearstream Luxembourg
and DTC, acting as a depositary. The exchange senior securities will also be
issuable and transferable in book-entry form through Euroclear, Clearstream
Luxembourg and DTC.
There will be no fixed record date for determining the eligible holders
of the unregistered senior securities that are entitled to participate in the
exchange offer. We will be deemed to have accepted for exchange validly tendered
unregistered senior securities when and if we have given oral (promptly
confirmed in writing) or written notice of acceptance to the exchange agent. The
exchange agent will act as agent for the tendering holders of unregistered
senior securities for the purpose of receiving exchange senior securities from
us and delivering them to such holders.
If any tendered unregistered senior securities are not accepted for
exchange because of an invalid tender or the occurrence of certain other events
described herein, certificates for any such unaccepted unregistered senior
securities will be returned, without expenses, to the tendering holder thereof
as promptly as practicable after the expiration of the exchange offer.
Holders of unregistered senior securities who tender in the exchange
offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the letter of transmittal, transfer taxes with respect to
the exchange of unregistered senior securities for exchange senior securities
pursuant to the exchange offer. We will pay all charges and expenses, other than
certain applicable taxes, in
15
connection with the exchange offer. It is important that you read the section "-
Fees and Expenses" below for more details regarding fees and expenses incurred
in the exchange offer.
Any unregistered senior securities which holders do not tender or which
we do not accept in the exchange offer will remain outstanding and continue to
accrue interest and will be subject to restrictions on transfer. We do not have
any obligation to register the unregistered senior securities under the
Securities Act. In that case, holders wishing to transfer unregistered senior
securities would have to rely on exemptions from the registration requirements
of the Securities Act.
Conditions of the Exchange Offer
You must tender your unregistered senior securities in accordance with
the requirements of this prospectus and the letter of transmittal in order to
participate in the exchange offer. Notwithstanding any other provision of the
exchange offer, or any extension of the exchange offer, we will not be required
to accept for exchange any unregistered senior securities, and may amend or
terminate the exchange offer if:
o the exchange offer, or the making of any exchange by a senior security
holder, violates applicable law or any applicable interpretation of the
staff of the SEC;
o any action or proceeding shall have been instituted or threatened with
respect to the exchange offer which, in our judgment or the judgment of
Viacom International, would impair our ability to proceed with the
exchange offer; and
o any law, rule or regulation or applicable interpretations of the staff
of the SEC have been issued or promulgated which, in our good faith
determination or the good faith determination of Viacom International,
does not permit us to effect the exchange offer.
Expiration Date; Extensions; Amendment; Termination
The exchange offer will expire 5:00 p.m., New York City time, on ,
2001, unless, in our sole discretion, we extend it. In the case of any
extension, we will notify the exchange agent orally (promptly confirmed in
writing) or in writing of any extension. We will also notify the registered
holders of unregistered senior securities of the extension no later than 9:00
a.m., New York City time, on the business day after the previously scheduled
expiration of the exchange offer.
To the extent we are legally permitted to do so, we expressly reserve
the right, in our sole discretion, to:
o delay accepting any unregistered senior security;
o waive any condition of the exchange offer; and
o amend the terms of the exchange offer in any manner.
We will give oral or written notice of any non-acceptance or amendment
to the registered holders of the unregistered senior securities as promptly as
practicable. If we consider an amendment to the exchange offer to be material,
we will promptly inform the registered holders of unregistered senior securities
of such amendment in a reasonable manner.
16
If we or Viacom International determine in our sole discretion that any
of the events or conditions described in "- Conditions of the Exchange Offer"
has occurred, we may terminate the exchange offer. If we decide to terminate the
exchange offer, we may:
o refuse to accept any unregistered senior securities and return any
unregistered senior securities that have been tendered to the holders;
o extend the exchange offer and retain all unregistered senior securities
tendered prior to the expiration of the exchange offer, subject to the
rights of the holders of tendered unregistered senior securities to
withdraw their tendered unregistered senior securities; or
o waive the termination event with respect to the exchange offer and
accept all properly tendered unregistered senior securities that have
not been withdrawn.
If any such waiver constitutes a material change in the exchange offer,
we will disclose the change by means of a supplement to this prospectus that
will be distributed to each registered holder of unregistered senior securities,
and we will extend the exchange offer for a period of five to ten business days,
depending upon the significance of the waiver and the manner of disclosure to
the registered holders of the unregistered senior securities, if the exchange
offer would otherwise expire during that period.
Any determination by us concerning the events described above will be
final and binding upon parties. Without limiting the manner by which we may
choose to make public announcements of any extension, delay in acceptance,
amendment or termination of the exchange offer, we will have no obligation to
publish, advertise, or otherwise communicate any public announcement, other than
by making a timely release to a financial news service.
Interest on the Exchange Senior Securities
The exchange senior securities will accrue interest from the date
interest was last paid on the unregistered senior securities. If no interest was
paid on your unregistered senior securities, your exchange senior securities
will accrue interest from and including January 17, 2001. Interest will be paid
on the exchange senior securities semi-annually on January 30 and July 30 of
each year, except that there was no January 30, 2001 interest payment date for
the 2006 senior notes. Holders of unregistered senior securities that are
accepted for exchange will be deemed to have waived the right to receive any
payment in respect of interest accrued from the date of the last interest
payment date that was made in respect of the unregistered senior securities
until the date of the issuance of the exchange senior securities. Consequently,
holders of exchange senior securities will receive the same interest payments
that they would have received had they not accepted the exchange offer.
Resale of Exchange Senior Securities
Based upon existing interpretations of the staff of the SEC set forth
in several no-action letters issued to third parties unrelated to us, we believe
that the exchange senior securities issued pursuant to the exchange offer in
exchange for the unregistered senior securities may be offered for resale,
resold and otherwise transferred by their holders, without complying with the
registration and prospectus delivery provisions of the Securities Act, provided
that:
o any exchange senior securities to be received by you will be acquired
in the ordinary course of your business;
17
o you are not engaged in, do not intend to engage in or have any
arrangement or understanding with any person to participate in the
distribution of the unregistered senior securities or exchange senior
securities;
o you are not an "affiliate" (as defined in Rule 405 under the Securities
Act) of Viacom or Viacom International or, if you are such an
affiliate, you will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable;
o if you are a broker-dealer, you have not entered into any arrangement
or understanding with Viacom or Viacom Internaional or any "affiliate"
of Viacom International (within the meaning of Rule 405 under the
Securities Act) to distribute the exchange senior securities;
o if you are a broker-dealer, you will receive exchange senior securities
for your own account in exchange for unregistered senior securities
that were acquired as a result of market-making activities or other
trading activities and that you will deliver a prospectus in connection
with any resale of such exchange senior securities; and
o you are not acting on behalf of any person or entity that could not
truthfully make these representations.
If you wish to participate in the exchange offer, you will be required
to make these representations to us in the letter of transmittal.
If you are a broker-dealer that receives exchange senior securities in
exchange for unregistered senior securities held for your own account, as a
result of market-making or other trading activities, you must acknowledge that
you will deliver a prospectus in connection with any resale of the exchange
senior securities. The letter of transmittal states that by so acknowledging and
by delivering a prospectus, you will not be deemed to admit that you are an
"underwriter" within the meaning of the Securities Act. The prospectus, as it
may be amended or supplemented from time to time, may be used by any
broker-dealers in connection with resales of exchange senior securities received
in exchange for unregistered senior securities. We have agreed that, for a
period of 180 days after the expiration of the exchange offer, we will make this
prospectus and any amendment or supplement to this prospectus available to any
such broker-dealer for use in connection with any resale.
Clearing of the Exchange Senior Securities
Upon consummation of the exchange offer, the exchange senior securities
will have different CUSIP, Common Code and ISIN numbers from the unregistered
senior securities. Upon consummation of the exchange offer, the exchange 2006
senior securities will have the same CUSIP, Common Code and ISIN numbers given
to our registered 6.40% senior notes due 2006 which were issued on March 19,
2001. Upon consummation of the exchange offer, the exchange 2010 senior
securities and the exchange debentures will have the same CUSIP, Common Code and
ISIN numbers given to our registered 7.70% senior notes due 2010 and our
registered 7.875% senior debentures due 2030, respectively, which were issued on
August 1, 2000 and March 19, 2001.
Senior securities that were issued under Regulation S that are not
tendered for exchange will continue to clear through Euroclear and Clearstream
Luxembourg under their original Common Codes and their ISIN numbers will remain
the same. Regulation S senior securities (unless acquired by a manager as part
of their original distribution) may now be sold in the United States or to U.S.
persons and, upon any such transfer, a beneficial interest in the Regulation S
global senior securities will be able to be exchanged for an interest in the
exchange global senior security in accordance with procedures established by
Euroclear or Clearstream Luxembourg and DTC.
18
Beneficial interests in the restricted Regulation S global senior
securities may be transferred to a person who takes delivery in the form of an
interest in the Regulation S global senior securities upon receipt by the
trustee of a written certification from the transferor, in the form provided in
the Indenture, to the effect that the transfer is being made in accordance with
Rule 903 or 904 of Regulation S.
We cannot predict the extent to which beneficial owners of an interest
in the Regulation S global senior securities will participate in the exchange
offer. Beneficial owners should consult their own financial advisors as to the
benefits to be obtained from exchange.
Procedures for Tendering
The term "holder" with respect to the exchange offer means any person
in whose name unregistered senior securities are registered on our agent's books
or any other person who has obtained a properly completed bond power from the
registered holder, or any person whose unregistered senior securities are held
of record by DTC, Euroclear or Clearstream Luxembourg who desires to deliver
such unregistered senior securities by book-entry transfer at DTC, Euroclear or
Clearstream Luxembourg as the case may be.
Except in limited circumstances, only a Euroclear participant,
Clearstream Luxembourg participant or a DTC participant listed on a DTC
securities position listing with respect to the unregistered senior securities
may tender its unregistered senior securities in the exchange offer. To tender
unregistered senior securities in the exchange offer:
o holders of unregistered senior securities that are DTC
participants may follow the procedures for book-entry transfer
as provided for below under "-Book-Entry Transfer" and in the
letter of transmittal.
o Euroclear participants and Clearstream Luxembourg participants
on behalf of the beneficial owners of unregistered senior
securities are required to use book-entry transfer pursuant to
the standard operating procedures of Euroclear or Clearstream
Luxembourg, as the case may be, which include transmission of
a computer-generated message to Euroclear or Clearstream
Luxembourg, as the case may be, in lieu of a letter of
transmittal. See the term "agent's message" under "-Book-Entry
Transfer."
In addition, either:
o the exchange agent must receive any corresponding certificate
or certificates representing unregistered senior securities
along with the letter of transmittal; or
o the exchange agent must receive, before expiration of the
exchange offer, a timely confirmation of book-entry transfer
of unregistered senior securities into the exchange agent's
account at DTC, Euroclear or Clearstream Luxembourg according
to their respective standard operating procedures for
electronic tenders described below and a properly transmitted
agent's message described below; or
o the holder must comply with the guaranteed delivery procedures
described below.
The tender by a holder of unregistered senior securities will
constitute an agreement between such holder and us in accordance with the terms
and subject to the conditions set forth in this prospectus and in the letter of
transmittal. If less than all the unregistered senior securities held by a
holder of unregistered
19
senior securities are tendered, a tendering holder should fill in the amount of
unregistered senior securities being tendered in the specified box on the letter
of transmittal. The entire amount of unregistered senior securities delivered to
the exchange agent will be deemed to have been tendered unless otherwise
indicated.
The method of delivery of unregistered senior securities, the letter of
transmittal and all other required documents or transmission of an agent's
message, as described under "-Book Entry Transfer," to the exchange agent is at
the election and risk of the holder. Instead of delivery by mail, we recommend
that holders use an overnight or hand delivery service. In all cases, sufficient
time should be allowed to assure timely delivery prior to the expiration of the
exchange offer. No letter of transmittal or unregistered senior securities
should be sent to Viacom but must instead be delivered to the exchange agent.
Delivery of documents to DTC, Euroclear or Clearstream Luxembourg in accordance
with their respective procedures will not constitute delivery to the exchange
agent.
If you are a beneficial owner of unregistered senior securities that
are registered in the name of a broker, dealer, commercial bank, trust company
or other nominee and you wish to tender your unregistered senior securities, you
should contact the registered holder promptly and instruct the registered holder
to tender on your behalf. If you wish to tender on your own behalf, you must,
prior to completing and executing the letter of transmittal and delivering your
unregistered senior securities, either:
o make appropriate arrangements to register ownership of the
unregistered senior securities in your name; or
o obtain a properly completed bond power from the registered
holder.
The transfer of record ownership may take considerable time and may not
be completed prior to the expiration date.
Signatures on a letter of transmittal or a notice of withdrawal as
described in "--Withdrawal of Tenders" below, as the case may be, must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange
Act, unless the unregistered senior securities tendered pursuant thereto are
tendered:
o by a registered holder who has not completed the box entitled
"Special Registration Instructions" or "Special Delivery
Instructions" on the letter of transmittal; or
o for the account of an eligible institution.
If the letter of transmittal is signed by a person other than the
registered holder of any unregistered senior securities listed therein, the
unregistered senior securities must be endorsed or accompanied by appropriate
bond powers which authorize the person to tender the unregistered senior
securities on behalf of the registered holder, in either case signed as the name
of the registered holder or holders appears on the unregistered senior
securities. If the letter of transmittal or any unregistered senior securities
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and,
unless waived by us, evidence satisfactory to us of their authority to so act
must be submitted with the letter of transmittal.
20
We will determine in our sole discretion all the questions as to the
validity, form, eligibility (including time of receipt), acceptance and
withdrawal of the tendered unregistered senior securities. Our determinations
will be final and binding. We reserve the absolute right to reject any and all
unregistered senior securities not validly tendered or any unregistered senior
securities our acceptance of which would, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any irregularities or
conditions of tender as to particular unregistered senior securities. Our
interpretation of the terms and conditions of the exchange offer (including the
instructions in the letter of transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of unregistered senior securities must be cured within such time as we will
determine. Neither we, the exchange agent nor any other person shall be under
any duty to give notification of defects or irregularities with respect to
tenders of unregistered senior securities nor shall any of them incur any
liability for failure to give such notification. Tenders of unregistered senior
securities will not be deemed to have been made until such irregularities have
been cured or waived. Any unregistered senior securities received by the
exchange agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned without cost by
the exchange agent to the tendering holder of such unregistered senior
securities unless otherwise provided in the letter of transmittal, as soon as
practicable following the expiration date of the exchange offer.
In addition, we reserve the right in our sole discretion to (a)
purchase or make offers for any unregistered senior securities that remain
outstanding subsequent to the expiration date, and (b) to the extent permitted
by applicable law, purchase unregistered senior securities in the open market,
in privately negotiated transactions or otherwise. The terms of any such
purchases or offers may differ from the terms of the exchange offer.
Book-Entry Transfer
We understand that the exchange agent will make a request promptly
after the date of this document to establish accounts with respect to the
unregistered senior securities at DTC, Euroclear or Clearstream Luxembourg for
the purpose of facilitating the exchange offer. Any financial institution that
is a participant in DTC's system may make book-entry delivery of unregistered
senior securities by causing DTC to transfer such unregistered senior securities
into the exchange agent's DTC account in accordance with DTC's Automated Tender
Offer Program procedures for such transfer. Any participant in Euroclear or
Clearstream Luxembourg may make book-entry delivery of Regulation S unregistered
senior securities by causing Euroclear or Clearstream Luxembourg to transfer
such senior securities into the exchange agent's account in accordance with
established Euroclear or Clearstream Luxembourg procedures for transfer. The
exchange for tendered unregistered senior securities will only be made after a
timely confirmation of a book-entry transfer of the unregistered senior
securities into the exchange agent's account, and timely receipt by the exchange
agent of an agent's message.
The term "agent's message" means a message, transmitted by DTC,
Euroclear or Clearstream Luxembourg, as the case may be, and received by the
exchange agent and forming part of the confirmation of a book-entry transfer,
which states that DTC, Euroclear or Clearstream Luxembourg, as the case may be,
has received an express acknowledgment from a participant tendering unregistered
senior securities and that such participant has received an appropriate letter
of transmittal and agrees to be bound by the terms of the letter of transmittal,
and we may enforce such agreement against the participant. Delivery of an
agent's message will also constitute an acknowledgment from the tendering DTC,
Euroclear or Clearstream Luxembourg participant, as the case may be, that the
representations contained in the appropriate letter of transmittal and described
above are true and correct.
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Guaranteed Delivery Procedures
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities, the letter of transmittal,
or any other required documents to the exchange agent prior to the expiration
date, or if such holder cannot complete DTC's, Euroclear's or Clearstream
Luxembourg's respective standard operating procedures for electronic tenders
before expiration of the exchange offer, may tender their unregistered senior
securities if:
o the tender is made through an eligible institution;
o before expiration of the exchange offer, the exchange agent
receives from the eligible institution either a properly
completed and duly executed notice of guaranteed delivery in
the form accompanying this prospectus, by facsimile
transmission, mail or hand delivery, or a properly transmitted
agent's message in lieu of notice of guaranteed delivery:
o setting forth the name and address of the holder and
the registered number(s), the certificate number or
numbers of the unregistered senior securities
tendered and the principal amount of unregistered
senior securities tendered;
o stating that the tender offer is being made by
guaranteed delivery; and
o guaranteeing that, within three (3) business days
after expiration of the exchange offer, the letter of
transmittal, or facsimile of the letter of
transmittal, together with the unregistered senior
securities tendered or a book-entry confirmation, and
any other documents required by the letter of
transmittal will be deposited by the eligible
institution with the exchange agent; and
o the exchange agent receives the properly completed and
executed letter of transmittal, or facsimile of the letter of
transmittal, as well as all tendered unregistered senior
securities in proper form for transfer or a book-entry
confirmation, and all other documents required by the letter
of transmittal, within three (3) business days after
expiration of the exchange offer.
Upon request to the exchange agent, a notice of guaranteed delivery
will be sent to holders who wish to tender their unregistered senior securities
according to the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of unregistered senior
securities may be withdrawn at any time prior to 5:00 p.m., New York City time,
on , 2001, the expiration date of the exchange offer.
For a withdrawal to be effective:
o the exchange agent must receive a written notice, which may be
by telegram, telex, facsimile transmission or letter, of
withdrawal at the address set forth below under "Exchange
Agent"; or
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o for DTC, Euroclear or Clearstream Luxembourg participants,
holders must comply with their respective standard operating
procedures for electronic tenders and the exchange agent must
receive an electronic notice of withdrawal from DTC, Euroclear
or Clearstream Luxembourg.
Any notice of withdrawal must:
o specify the name of the person who tendered the unregistered
senior securities to be withdrawn;
o identify the unregistered senior securities to be withdrawn,
including the certificate number or numbers and principal
amount of the unregistered senior securities to be withdrawn;
o be signed by the person who tendered the unregistered senior
securities in the same manner as the original signature on the
letter of transmittal, including any required signature
guarantees; and
o specify the name in which the unregistered senior securities
are to be re-registered, if different from that of the
withdrawing holder.
If unregistered senior securities have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of withdrawal must
specify the name and number of the account at DTC, Euroclear or Clearstream
Luxembourg to be credited with the withdrawn unregistered senior securities and
otherwise comply with the procedures of the facility. We will determine all
questions as to the validity, form and eligibility (including time of receipt)
for such withdrawal notices, and our determination shall be final and binding on
all parties. Any unregistered senior securities so withdrawn will be deemed not
to have been validly tendered for purposes of the exchange offer, and no
exchange senior securities will be issued with respect thereto unless the
unregistered senior securities so withdrawn are validly re-tendered. Any
unregistered senior securities which have been tendered but which are not
accepted for exchange will be returned to the holder without cost to such holder
as soon as practicable after withdrawal. Properly withdrawn unregistered senior
securities may be re-tendered by following the procedures described above under
"-Procedures for Tendering" at any time prior to the expiration date.
Consequences of Failure to Exchange
If you do not tender your unregistered senior securities to be
exchanged in this exchange offer, they will remain "restricted securities"
within the meaning of Rule 144(a)(3) of the Securities Act. Accordingly, they:
o may be resold only if (i) registered pursuant to the
Securities Act, (ii) an exemption from registration is
available or (iii) neither registration nor an exemption is
required by law; and
o shall continue to bear a legend restricting transfer in the
absence of registration or an exemption therefrom.
As a result of the restrictions on transfer and the availability of the
exchange senior securities, the unregistered senior securities are likely to be
much less liquid than before the exchange offer.
Exchange Agent
Citibank, N.A. has been appointed as the principal exchange agent and
Kredietbank S.A. Luxembourgeoise has been appointed as the Luxembourg exchange
agent for the exchange of the
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unregistered senior securities. In its capacity as Luxembourg exchange agent,
Kredietbank will act solely as an intermediary between Citibank, as the
principal exchange agent and the holders of unregistered senior securities
wishing to accept the exchange offer. Kredietbank will forward the tenders it
receives to the principal exchange agent. Questions and requests for assistance
relating to the exchange of the unregistered senior securities should be
directed to the exchange agents addressed as follows:
- ---------------------------------------- ---------------------------------------
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Telephone number: (800) 422-2066 Telephone number: (352) 47 97 3933
Facsimile number: (212) 825-3483 Facsimile number: (352) 47 97 73 951
- ---------------------------------------- ---------------------------------------
Fees and Expenses
We will bear the expenses of soliciting tenders pursuant to the
exchange offer. The principal solicitation for tenders pursuant to the exchange
offer is being made by mail. Additional solicitations may be made by our
officers and regular employees and our affiliates in person, by telegraph or
telephone.
We will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse the
exchange agent for its related reasonable out-of-pocket expenses and accounting
and legal fees. We may also pay brokerage houses and other custodians, nominees
and fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this prospectus, letters of transmittal and related
documents to the beneficial owners of the unregistered senior securities and in
handling or forwarding tenders for exchange.
We will pay all transfer taxes, if any, applicable to the exchange of
unregistered senior securities pursuant to the exchange offer. The tendering
holder, however, will be required to pay any transfer taxes whether imposed on
the registered holder or any other person, if:
o certificates representing exchange senior securities or
unregistered senior securities for principal amounts not
tendered or accepted for exchange are to be delivered to, or
are to be registered or issued in the name of, any person
other than the registered holder of unregistered senior
securities tendered;
o tendered unregistered senior securities are registered in the
name of any person other than the person signing the letter of
transmittal; or
o a transfer tax is imposed for any reason other than the
exchange of unregistered senior securities under the exchange
offer.
If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the letter of transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
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DESCRIPTION OF SENIOR SECURITIES
General
We issued the unregistered senior securities and will issue the
exchange senior securities under the Indenture, dated as of May 15, 1995, among
us, our wholly owned subsidiary, Viacom International, as guarantor, and
Citibank, N.A., as successor to State Street Bank and Trust Company and The
First National Bank of Boston, Trustee. The Indenture was supplemented by the
First Supplemental Indenture, dated as of May 24, 1995, was supplemented and
amended by the Second Supplemental Indenture and Amendment No. 1, dated as of
December 15, 1995, was supplemented by the Third Supplemental Indenture, dated
as of July 22, 1996, was supplemented by the Fourth Supplemental Indenture,
dated as of August 1, 2000, was supplemented, in connection with the issuance of
the unregistered senior securities, by the Fifth Supplemental Indenture, dated
as of January 17, 2001, was supplemented by the Sixth Supplemental Indenture,
dated as of May 17, 2001 and was supplemented by the Seventh Supplemental
Indenture, dated as of May 31, 2001. We refer to the Indenture, as so
supplemented and amended, as the "Indenture".
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act of 1933
and the certificates for the exchange senior securities will not bear legends
restricting their transfer.
The senior securities initially are limited to $1,650,000,000 principal
amount, consisting of $400,000,000 principal amount of 2006 senior notes,
$500,000,000 principal amount of 2010 senior notes and $750,000,000 principal
amount of senior debentures. The unregistered 2006 senior notes will be, upon
their exchange for exchange 2006 senior notes registered under the Securities
Act, a further issuance of our 6.40% senior notes due 2006, $396,925,000 of
which were issued on March 19, 2001. The unregistered 2010 senior notes will be,
upon their exchange for exchange 2010 senior notes registered under the
Securities Act, a further issuance of our 7.70% senior notes due 2010,
$1,150,000,000 of which were issued on August 1, 2000 and $499,000,000 of which
were issued on March 19, 2001. The unregistered senior debentures will be, upon
their exchange for exchange senior debentures registered under the Securities
Act, a further issuance of our 7.875% senior debentures due 2030, $500,000,000
of which were issued on August 1, 2000 and $749,800,000 of which were issued on
March 19, 2001.
Each exchange senior security will bear interest at the applicable
annual rate noted on the cover page of this prospectus. Interest will be payable
on the exchange senior securities on January 30 and July 30 of each year
beginning January 30, 2001, except that there was no January 30, 2001 interest
payment date for the 2006 senior notes. Holders of unregistered senior
securities that are accepted for exchange will be deemed to have waived the
right to receive any payment in respect of interest accrued from the date of the
last interest payment date that was made in respect of the unregistered senior
securities until the date of the issuance of the exchange senior securities.
Interest will be computed on the basis of a 360-day year of 30-day months.
Consequently, holders of exchange senior securities will receive the same
interest payments that they would have received had they not accepted the
exchange offer. Interest on the exchange senior securities will accrue from and
including the settlement date and will be paid to holders of record on the July
15 or January 15 immediately before the interest payment date.
The 2006 senior notes will mature on January 30, 2006. The 2010 senior
notes will mature on July 30, 2010. The senior debentures will mature on July
30, 2030. On the maturity dates of the senior securities, the holders will be
entitled to receive 100% of the principal amount of the applicable exchange
senior securities. We may redeem the 2010 senior notes and the senior debentures
at any time at their
25
principal amount, plus the applicable premium and accrued interest. The senior
securities do not provide for any sinking fund.
The senior securities are issued in denominations of not less than
$1,000 and integral multiples thereof.
Viacom's rights and the rights of its creditors, including holders of
senior 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.
Guarantees
Viacom International will unconditionally guarantee the due and
punctual payment of the principal of, premium, if any, and any interest on the
senior securities when and as the same shall become due and payable, whether at
maturity, upon redemption, upon acceleration or otherwise. The guarantees of the
senior securities are endorsed on the senior securities.
Various federal and state fraudulent conveyance laws have been enacted
for the protection of creditors and may be utilized by a court of competent
jurisdiction to subordinate or avoid all or part of any guarantee issued by
Viacom International. The Indenture provides that in the event that the
guarantees would constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any United States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law, then the liability of Viacom International under the guarantees shall be
reduced to the extent necessary to eliminate such fraudulent transfer or
conveyance or violation under the applicable fraudulent transfer or conveyance
or similar law. Application of this clause could limit the amount which holders
of senior securities may be entitled to collect under the guarantees. Holders,
by their acceptance of the senior securities, will have agreed to such
limitations.
To the extent that a court were to find that (x) a guarantee was
incurred by Viacom International with the intent to hinder, delay or defraud any
present or future creditor or (y) Viacom International did not receive fair
consideration or reasonably equivalent value for issuing its guarantee and
Viacom International (i) was insolvent or rendered insolvent by reason of the
issuance of the guarantee, (ii) was engaged or about to engage in a business or
transaction for which the remaining assets of Viacom International constituted
unreasonably small capital to carry on its business or (iii) intended to incur,
or believed that it would incur, debts beyond its ability to pay such debts as
they matured, the court could subordinate or avoid all or part of such guarantee
in favor of Viacom International's other creditors. To the extent any guarantee
issued by Viacom International were voided as a fraudulent conveyance or held
unenforceable for any other reason, the holders of the senior securities
guaranteed by Viacom International could cease to have any claim against Viacom
International and would be creditors solely of Viacom.
We and Viacom International believe that the issuances of the
guarantees by Viacom International are not fraudulent conveyances. There can be
no assurance, however, that a court passing on such questions would reach the
same conclusions. In rendering their opinions on the validity of the senior
securities and, if applicable, the related guarantees, neither our counsel,
counsel for Viacom International nor counsel for the initial purchasers of the
unregistered senior securities will express any opinion as to federal or state
laws relating to fraudulent transfers.
Ranking
26
The senior securities are senior unsecured obligations of Viacom and
rank equally in right of payment with all of Viacom's other unsecured and
unsubordinated indebtedness. The guarantees on the senior securities are senior
unsecured obligations of Viacom International and rank equally in right of
payment with all of Viacom International's other unsecured and unsubordinated
indebtedness.
The senior securities and the guarantees are effectively subordinated
to any secured indebtedness of Viacom or Viacom International, as the case may
be, to the extent of the value of the assets securing such indebtedness. The
Indenture does not limit the amount of debt that Viacom, Viacom International or
their respective subsidiaries can incur.
In addition, both Viacom International and Viacom conduct their
operations through subsidiaries, which generate a substantial portion of their
respective operating income and cash flow. As a result, distributions or
advances from subsidiaries of Viacom and Viacom International are a major source
of funds necessary to meet their respective debt service and other obligations.
Contractual provisions, laws or regulations, as well as our subsidiaries'
financial condition and operating requirements, may limit the ability of Viacom
or Viacom International to obtain cash required to pay Viacom's debt service
obligations, including payments on the senior securities, or Viacom
International's payment obligations under the guarantees. The senior securities
will be structurally subordinated to all obligations of Viacom's subsidiaries
(other than Viacom International) including claims with respect to trade
payables. The guarantees will be structurally subordinated to all obligations of
Viacom International's subsidiaries, including claims with respect to trade
payables. This means that holders of the senior securities of Viacom will have a
junior position to the claims of creditors of Viacom's subsidiaries (other than
Viacom International) on the assets and earnings of such subsidiaries. Holders
of guarantees of Viacom International will have a junior position to the claims
of creditors of Viacom International's subsidiaries on the assets and earnings
of such subsidiaries and will have no claim by virtue of such guarantees against
Viacom or any subsidiary of Viacom that is not a subsidiary of Viacom
International.
As of March 31, 2001, our subsidiaries, other than Viacom
International, had approximately $2.3 billion of indebtedness outstanding. This
indebtedness was primarily incurred by Infinity and its subsidiaries and
Blockbuster. We own several operating subsidiaries, including Viacom
International, the guarantor of the senior securities, Infinity and Blockbuster.
Viacom International is a wholly owned subsidiary of Viacom, with approximately
$766 million of indebtedness outstanding as of March 31, 2001. Viacom
International's subsidiaries had approximately $1.4 billion of indebtedness
outstanding as of March 31, 2001.
Optional Redemption
Prior to maturity, we may redeem the 2010 senior notes and the senior
debentures at any time, at our option, in whole or in part, on not less than 30
nor more than 60 days' prior notice, prior to their maturity at a redemption
price equal to the sum of their principal amount, the Make-Whole Amount
described below and any accrued and unpaid interest to the date of redemption.
Holders of record on a record date that is on or prior to a redemption date will
be entitled to receive interest due on the interest payment date.
The term "Make-Whole Amount" means, the excess, if any, of (i) the
aggregate present value as of the date of the redemption of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable if redemption had not been made,
determined by discounting, on a semiannual basis, the remaining principal and
interest at the Reinvestment Rate described below (determined on the third
business day preceding the date notice of redemption is given) from the dates on
which the principal and interest would have been payable if the
27
redemption had not been made, to the date of redemption, over (ii) the aggregate
principal amount of the exchange 2010 senior notes or the exchange senior
debentures being redeemed.
The term "Reinvestment Rate" means 0.25% for the exchange 2010 senior
notes and 0.35% for the exchange senior debentures, 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 under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to the
maturity, yields for the two published maturities most closely corresponding to
the maturity 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 Federal Reserve Statistical Release H.15 published prior
to the date of determination of the Make-Whole Amount will be used for purposes
of calculating the Reinvestment Rate.
The Make-Whole Amount will be calculated by an independent investment
banking institution of national standing appointed by us. If we fail to make the
appointment at least 45 business days prior to the date of redemption, or if the
institution is unwilling or unable to make the calculation, the calculation will
be made by an independent investment banking institution of national standing
appointed by the Trustee. If the Reinvestment Rate is not available as described
above, the Reinvestment Rate will be calculated by interpolation or
extrapolation of comparable rates selected by the independent investment banking
institution.
In the case of any partial redemption, selection of the 2010 senior
notes or the senior debentures for redemption will be made by the Trustee in
compliance with the requirements of the principal U.S. national securities
exchange, if any, on which the 2010 senior notes or the exchange senior
debentures are listed or, if they are not listed on a U.S. national securities
exchange, by lot or by such other method as the Trustee in its sole discretion
deems to be fair and appropriate. The Luxembourg Stock Exchange has no such
requirements.
Further Issues
We may from time to time without notice to, or the consent of, the
holders of a series of senior securities, create and issue further senior
securities of the same series, equal in rank to the senior securities in all
respects (or in all respects except for the payment of interest accruing prior
to the issue date of the new securities or except for the first payment of
interest following the issue date of the new securities) so that the new
securities may be consolidated and form a single series with the relevant series
of senior securities and have the same terms as to status, redemption or
otherwise as the relevant series of senior securities. In the event that we
issue additional senior securities of the same series, we will prepare a new
offering memorandum or prospectus and make a new application to list such
securities on the Luxembourg Stock Exchange.
Payment of Additional Amounts
We will, subject to the exceptions and limitations set forth below, pay
as additional interest on the senior securities such additional amounts as are
necessary in order that the net payment by us or a paying agent of the principal
of and interest on the senior securities to a holder who is a non-United States
person (as defined under this heading below), after deduction for any present or
future tax, assessment or other governmental charge of the United States or a
political subdivision or taxing authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than the amount
provided in the series of senior securities to be then due and payable;
provided, however, that the foregoing obligation to pay additional amounts shall
not apply:
28
(1) to any tax, assessment or other governmental charge that
is imposed or withheld solely by reason of the holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the holder if the holder
is an estate, trust, partnership or corporation, or a person holding a
power over an estate or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a
trade or business in the United States or having had a
permanent establishment in the United States;
(b) having a current or former relationship with the
United States, including a relationship as a citizen or
resident thereof;
(c) being or having been a foreign or domestic
personal holding company, a passive foreign investment company
or a controlled foreign corporation with respect to the United
States or a corporation that has accumulated earnings to avoid
United States federal income tax;
(d) being or having been a "10-percent shareholder"
of ours as defined in Section 871(h)(3) of the Code (as
defined in "United States Tax Considerations") or any
successor provision; or
(e) being a bank receiving payments on an extension
of credit made pursuant to a loan agreement entered into in
the ordinary course of its trade or business;
(2) to any holder that is not the sole beneficial owner of a
senior security, or a portion thereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or settlor with
respect to the fiduciary, a beneficial owner or member of the
partnership would not have been entitled to the payment of an
additional amount had the beneficiary, settlor, beneficial owner or
member received directly its beneficial or distributive share of the
payment;
(3) to any tax, assessment or other governmental charge that
is imposed or withheld by reason of the failure of the holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States, or otherwise
with respect to the status, of the holder or beneficial owner of such
senior security (or any beneficiary, settlor, beneficial owner or
member thereof), if compliance is required by statute, by regulation of
the United States Treasury Department or by an applicable income tax
treaty to which the United States is a party, or by any official
interpretation or ruling promulgated pursuant to any of the foregoing,
as a precondition to exemption from such tax, assessment or other
governmental charge;
(4) to any tax, assessment or other governmental charge that
is imposed otherwise than by withholding by us or a paying agent from
the payment;
(5) to any tax, assessment or other governmental charge that
is imposed or withheld solely by reason of a change in law, regulation,
or administrative or judicial interpretation that becomes effective
more than 15 days after the payment becomes due or is duly provided
for, whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or similar tax, assessment or other
governmental charge;
(7) to any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment of
principal of or interest on any senior security, if such payment can be
made without such withholding by any other paying agent; or
29
(8) in the case of any combination of items (1), (2), (3),
(4), (5), (6) and (7).
The senior securities are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided under this heading "-- Payment of
Additional Amounts" and under the heading "-- Redemption for Tax Reasons," we
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or a political subdivision
or taxing authority thereof or therein.
We will also not pay additional amounts on the senior securities
o where withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of November 26 and
27, 2000 or any law implementing or complying with, or
introduced in order to conform to, that Directive; or
o presented for payment by or on behalf of a beneficial owner
who would have been able to avoid the withholding or deduction
by presenting the relevant global note to another paying agent
in a member state of the European Union.
The European Union is currently considering a proposal for a new
directive regarding the taxation of savings income. Subject to a number of
important conditions being met, it is proposed that member states of the
European Union will be required to provide to the tax authorities of another
member state details of payments of interest or other similar income paid by a
person within its jurisdiction to an individual resident in that other member
state, subject to the right of certain member states to opt instead for a
withholding system for a transitional period in relation to these payments and
subject to the proposals not being required to be applied to the global notes.
As used under this heading, "--Payment of Additional Amounts," and
under the headings, "--Redemption for Tax Reasons" and "United States Tax
Considerations," the terms "United States" and "U.S." mean the United States of
America (including the States thereof and the District of Columbia) and its
territories, its possessions and other areas subject to its jurisdiction, and
the term "United States person" means 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 United States 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 United 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. A "non-United States person" means a person who is not a United
States person.
Redemption for Tax Reasons
If, as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, an official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after the date of this prospectus, we
become or, based upon a written opinion of independent counsel selected by us,
will become obligated to pay additional amounts as described herein
30
under the heading "Payment of Additional Amounts" with respect to a series of
senior securities, we may, at our option, redeem, as a whole, but not in part,
the relevant series of senior securities on not less than 30 nor more than 60
days' prior notice, at a redemption price equal to 100% of their principal
amount together with interest accrued but unpaid thereon to the date fixed for
redemption.
Merger, Consolidation or Sale of Assets
Under the terms of the Indenture, we and Viacom International generally
would be permitted to consolidate or merge with another corporation. We and
Viacom International would also be permitted to sell all or substantially all of
our assets to another person. However, neither we nor Viacom International may
take any of these actions unless all the following conditions are met:
(1) the merger, consolidation or sale of assets must not cause
an Event of Default. See "-- Defaults and Remedies" below. An Event of
Default for this purpose would also include any event that would be an
Event of Default if the notice or time requirements were disregarded;
(2) the person we would merge or consolidate with or sell all
or substantially all of our assets to must be organized under the laws
of the United States or any state thereof;
(3) the person we would merge or consolidate with or sell all
or substantially all of our assets to must agree to be legally
responsible for the outstanding securities issued under the Indenture;
and
(4) we or Viacom International must deliver specified
certificates and documents to the trustee.
We and Viacom International may merge or consolidate with, or sell all
or substantially all of our assets to each other or any of our Subsidiaries.
When we make reference in this section to the sale of " all or substantially all
of our assets," we mean property and assets generating revenues representing, in
the aggregate, at least 80% of our total consolidated revenues.
Limitations on Liens
We covenant in the Indenture that we will not create, assume or permit
any Lien on any of our properties or assets, unless we secure the senior
securities at least equally and ratably to the secured Indebtedness. The
foregoing only applies to Liens that in the aggregate exceed 15% of our total
consolidated assets, reduced by the Attributable Debt related to any permitted
sale leaseback arrangement. See "-- Limitations on Sale and Leaseback
Transactions" below. The restrictions do not apply to Capitalized Leases or
Indebtedness that is secured by:
(1) Liens existing, in the case of the 2006 senior notes, on
January 17, 2001, and in the case of the 2010 senior notes and the
senior debentures, on August 1, 2000;
(2) Liens on any property or any Indebtedness of a person
existing at the time the person becomes a Subsidiary (whether by
acquisition, merger or consolidation);
(3) Liens in favor of us or our Subsidiaries; and
(4) Liens existing at the time of acquisition of the assets
secured thereby and purchase money Liens.
31
The restrictions do not apply to extensions, renewals or replacements
of any of the foregoing types of Liens.
Limitations on Sale and Leaseback Transactions
We covenant in the Indenture that neither we nor any Restricted
Subsidiary will enter into any arrangement with any person to lease a Principal
Property (except for any arrangements that exist, in the case of the 2006 senior
notes, on January 17, 2001, and in the case of the 2010 senior notes and the
senior debentures, on August 1, 2000; or that exist at the time any person that
owns a Principal Property becomes a Restricted Subsidiary) which has been or is
to be sold by us or the Restricted Subsidiary to the Person unless:
(1) the sale and leaseback arrangement involves a lease for a
term of not more than three years;
(2) the sale and leaseback arrangement is entered into between
us and any Subsidiary or between our Subsidiaries;
(3) we or the Restricted Subsidiary would be entitled to incur
indebtedness secured by a Lien on the Principal Property at least equal
in amount to the Attributable Debt permitted pursuant to the first
paragraph under "Limitations on Liens" without having to secure equally
and ratably the senior securities;
(4) the proceeds of the sale and leaseback arrangement are at
least equal to the fair market value (as determined by our Board of
Directors in good faith) of the property and we apply within 180 days
after the sale an amount equal to the greater of the net proceeds of
the sale or the Attributable Debt associated with the property to (i)
the retirement of long-term debt for borrowed money that is not
subordinated to the senior securities and that is not debt to us or a
Subsidiary, or (ii) the purchase or development of other comparable
property; or
(5) the sale and leaseback arrangement is entered into within
180 days after the initial acquisition of the Principal Property
subject to the sale and leaseback arrangement.
The term "Attributable Debt," with regard to a sale and leaseback
arrangement of a Principal Property, is defined in the Indenture as an amount
equal to the lesser of: (a) the fair market value of the property (as determined
in good faith by our Board of Directors); and (b) the present value of the total
net amount of rent payments to be made under the lease during its remaining
term, discounted at the rate of interest set forth or implicit in the terms of
the lease, compounded semi-annually. The calculation of the present value of the
total net amount of rent payments is subject to adjustments specified in the
Indenture.
The term "Principal Property" is defined in the Indenture to include
any parcel of our or our Restricted Subsidiaries' real property and related
fixtures or improvements located in the United States, the aggregate book value
of which on the date of determination exceeds $1.0 billion. The term "Principal
Property" does not include any telecommunications equipment or parcels of real
property and related fixtures or improvements which are determined in good faith
by our Board of Directors, not to be of material importance to our and our
Subsidiaries' total business. As of the date of this prospectus, neither we nor
any of our Subsidiaries own any Principal Property.
Defaults and Remedies
32
You have specified rights if an Event of Default occurs in respect of
the senior securities of your series, as described below.
The term "Event of Default" in respect of the senior securities of your
series means any of the following:
(1) we do not pay interest on a senior security of such series
within 30 days of its due date;
(2) we do not pay the principal of or any premium on a senior
security of such series on its due date;
(3) we remain in breach of a covenant or warranty in respect
of the Indenture for 60 days after we receive a written notice of
default. The notice must be sent by either the trustee or holders of at
least 25% in principal amount of a series of outstanding senior
securities;
(4) we are in default under agreements under which we have
Indebtedness outstanding in excess of $250 million in the aggregate and
which Indebtedness is due either at maturity or has been declared due
prior to maturity and remains unpaid;
(5) we fail to pay a money judgment in excess of $250 million
for a period of 60 days after it becomes final and not subject to
further appeal; or
(6) we or Viacom International file for bankruptcy, or other
specified events of bankruptcy, insolvency or reorganization occur.
If an Event of Default has occurred, the trustee or the holders of at
least 25% in principal amount of the senior securities of the affected series
may declare the entire principal amount and premium, if any, and all the accrued
interest on, the senior 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 trustee or any holder of senior 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 senior securities of a
series may also waive certain past defaults under the Indenture on behalf of all
of the holders of such series of senior 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 senior
securities.
Except in cases of default, where the trustee has special duties, the
trustee is not required to take any action under the Indenture at the request of
holders unless the holders offer the trustee reasonable protection from expenses
and liability satisfactory to the trustee. If a reasonable indemnity is
provided, the holders of a majority in principal amount of a series of senior
securities may direct the time, method and place of conducting any lawsuit or
other formal legal action seeking any remedy available to the trustee. The
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.
Before holders are allowed to bypass the 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 senior securities, the following must occur:
33
o holders must give the 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
senior securities of a series must make a written request that
the trustee take action because of the default and must offer
the trustee indemnity satisfactory to the trustee against the
cost and other liabilities of taking that action;
o the 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 senior
securities of a series must not have given the trustee a
direction inconsistent with the above notice.
However, you are entitled at any time to bring a lawsuit for the
payment of money due on your senior securities on or after the due date.
We are required to furnish to the trustee an annual statement as to our
performance of our obligations under the Indenture and as to any default in such
performance. We are also required to notify the trustee of any event that is, or
after notice or lapse of time or both would become, an Event of Default.
Book Entry, Delivery and Form
Each series of senior securities will be issued in one or more fully
registered global securities which will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depository") and registered
in the name of Cede & Co., the Depository's nominee. We will not issue senior
securities in certificated form. Beneficial interests in the global securities
will be represented through book-entry accounts of financial institutions acting
on behalf of beneficial owners as direct and indirect participants in the
Depository (the "Depository Participants"). Investors may elect to hold
interests in the global securities through either the Depository (in the United
States), or Clearstream Luxembourg or Euroclear (in Europe) if they are
participants of those systems, or, indirectly, through organizations that are
participants in those systems. Clearstream Luxembourg and Euroclear will hold
interests on behalf of their participants through customers' securities accounts
in Clearstream Luxembourg's and Euroclear's names on the books of their
respective depositaries, which in turn will hold such interests in customers'
securities accounts in the depositaries' names on the books of the Depository.
At the present time, Citibank, N.A. acts as U.S. depositary for Clearstream
Luxembourg and The Chase Manhattan Bank acts as U.S. depositary for Euroclear
(the "U.S. Depositaries"). Beneficial interests in the global securities will be
held in denominations of $1,000 and integral multiples thereof. Except as set
forth below, the global securities may be transferred, in whole but not in part,
only to another nominee of the Depository or to a successor of the Depository or
its nominee. Clearstream Luxembourg has advised us that it is incorporated under
the laws of Luxembourg as a professional depositary. Clearstream Luxembourg
holds securities for its participating organizations ("Clearstream Luxembourg
Participants") and facilitates the clearance and settlement of securities
transactions between Clearstream Luxembourg Participants through electronic
book-entry changes in accounts of Clearstream Luxembourg Participants, thereby
eliminating the need for physical movement of certificates.
Clearstream Luxembourg provides to Clearstream Luxembourg Participants,
among other things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. Clearstream Luxembourg interfaces with domestic markets in several
countries. As a professional depositary, Clearstream Luxembourg is subject to
regulation by the Luxembourg Monetary Institute. Clearstream Luxembourg
Participants are recognized financial
34
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations and may include the initial purchasers or their affiliates.
Indirect access to Clearstream Luxembourg is also available to others, such as
banks, brokers, dealers and trust companies that clear through, or maintain a
custodial relationship with, a Clearstream Luxembourg Participant either
directly or indirectly.
Distributions with respect to each series of senior securities held
beneficially through Clearstream Luxembourg will be credited to cash accounts of
Clearstream Luxembourg Participants in accordance with its rules and procedures,
to the extent received by the U.S. Depositary for Clearstream Luxembourg.
Euroclear has advised us that it was created in 1968 to hold securities
for its participants ("Euroclear Participants") and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear provides various other services, including
securities lending and borrowing and interfaces with domestic markets in several
countries. The Euroclear System is owned by Euroclear Clearance System Public
Limited Company (ECS plc) and operated through a license agreement by Euroclear
Bank S.A./N.V., a bank incorporated under the laws of the Kingdom of Belgium as
the "Euroclear operator".
The Euroclear operator holds securities and book-entry interests in
securities for participating organizations and facilitates the clearance and
settlement of securities transactions between Euroclear Participants, and
between Euroclear Participants and participants of certain other securities
intermediaries through electronic book-entry changes in accounts of such
participants or other securities intermediaries.
The Euroclear operator provides Euroclear Participants, among other
things, with safekeeping, administration, clearance and settlement, securities
lending and borrowing, and related services.
Non-participants of Euroclear may hold and transfer book-entry
interests in the securities through accounts with a direct participant of
Euroclear or any other securities intermediary that holds a book-entry interest
in the securities through one or more securities intermediaries standing between
such other securities intermediary and the Euroclear operator.
The Euroclear operator is regulated and examined by the Belgian Banking
and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System, and applicable Belgian
law (the "Terms and Conditions"). The Terms and Conditions govern transfers of
securities and cash within Euroclear, withdrawals of securities and cash from
Euroclear, and receipts of payments with respect to securities in Euroclear. All
securities in Euroclear are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
Participants, and has no record of, or relationship with, persons holding
through Euroclear Participants.
Distributions with respect to each series of senior securities held
beneficially through Euroclear will be credited to the cash accounts of
Euroclear Participants in accordance with the Terms and Conditions, to the
extent received by the U.S. Depositary for Euroclear.
Global Clearance and Settlement Procedures
35
Secondary market trading between Depository Participants will occur in
the ordinary way in accordance with the Depository's rules and will be settled
in immediately available funds using the Depository's Same-Day Funds Settlement
System. Secondary market trading between Clearstream Luxembourg Participants and
Euroclear Participants will occur in the ordinary way in accordance with the
applicable rules and operating procedures of Clearstream Luxembourg and
Euroclear and will be settled using the procedures applicable to conventional
eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through the Depository on the one hand, and directly or indirectly through
Clearstream Luxembourg or Euroclear Participants, on the other, will be effected
within the Depository in accordance with the Depository's rules on behalf of the
relevant European international clearing system by its U.S. Depository; however,
such cross-market transactions will require delivery of instructions to the
relevant European international clearing system by the counterparty in such
system in accordance with its rules and procedures and within its established
deadlines (European time).
The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving senior securities in the Depository, and making or receiving
payment in accordance with normal procedures for same-day funds settlement
applicable to the Depository. Clearstream Luxembourg Participants and Euroclear
Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Because of time-zone differences, credits of senior securities received
in Clearstream Luxembourg or Euroclear as a result of a transaction with a
Depository Participants will be made during subsequent securities settlement
processing and dated the business day following the Depository settlement date.
Such credits, or any transactions in the senior securities settled during such
processing, will be reported to the relevant Euroclear Participants or
Clearstream Luxembourg Participants on that business day. Cash received in
Clearstream Luxembourg or Euroclear as a result of sales of senior securities by
or through a Clearstream Luxembourg Participant or a Euroclear Participant to a
Depository Participant will be received with value on the business day of
settlement in the Depository but will be available in the relevant Clearstream
Luxembourg or Euroclear cash account only as of the business day following
settlement in the Depository.
Although the Depository, Clearstream Luxembourg and Euroclear have
agreed to the foregoing procedures in order to facilitate transfers of
securities among participants of the Depository, Clearstream Luxembourg and
Euroclear, they are under no obligation to perform or continue to perform such
procedures and they may discontinue the procedures at any time.
Payment and Paying Agents
Principal of, premium, if any, and interest on the senior securities
will be payable, subject to any applicable laws and regulations, at the office
of our paying agent or paying agents that we may designate from time to time,
except that at our option, payment of interest may be made by check mailed to
the address of the person entitled thereto at the address in the security
register. We will pay interest on the senior securities on any interest payment
date to the person in whose name the senior security (or predecessor senior
security) is registered at the close of business on the regular record date for
such interest.
The corporate trust office of the trustee will be designated as our
paying agent for payments with respect to the senior securities of each series.
We may at any time designate additional paying agents or rescind the designation
of any paying agent or approve a change in the office through which any paying
36
agent acts, except that we will be required to maintain a paying agent in each
place of payment for the series.
Any money paid by us or Viacom International, as guarantor, to a paying
agent for the payment of the principal of, premium, if any, or interest on any
senior security of any series that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us or Viacom International, as guarantor, as the case may be, and the
holder of such senior security may thereafter look only to us and Viacom
International for that payment.
Meetings, Modification and Waiver
Modifications and amendments of the Indenture may be made by us, Viacom
International, as guarantor, and the trustee with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding senior
securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
holders of each outstanding senior security affected thereby, (a) change the
stated maturity of the principal of, or any installment of principal of or
interest on, any senior security or the terms of any sinking fund or analogous
payment with respect to any senior security, (b) reduce the principal amount of,
or premium or interest on, any senior security, (c) change our obligation to pay
additional amounts, (d) reduce the amount of principal of an original issue
discount senior security payable upon acceleration of the maturity thereof or
provable in bankruptcy, (e) change the place of payment where, or the coin or
currency in which, any senior security or any premium or interest thereon is
payable, (f) impair the right to institute suit for the enforcement of any
payment on or with respect to any senior security, (g) reduce the percentage in
principal amount of outstanding senior securities of any series, the consent of
whose holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults, (h) reduce the requirements contained in the Indenture for
quorum or voting, (i) change our obligation to maintain an office or agency in
the places and for the purposes required by the Indenture, or (j) reduce the
obligations of Viacom International, if any, in respect of the due and punctual
payment of any principal of, premium or interest on any senior security or any
additional amounts in respect thereof.
The holders of at least a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of the holders of all
the senior securities of that series, waive, insofar as that series is
concerned, our compliance with specified provisions of the Indenture. The
holders of not less than a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of all holders of
senior securities of that series, waive any past default under the Indenture
with respect to senior securities of that series, except a default (a) in the
payment of principal of or any premium or interest on any senior security of
such series or (b) in respect of any other provision of the Indenture that
cannot be modified or amended without the consent of the holder of each
outstanding senior security of such series affected thereby.
The Indenture provides that, in determining whether the holders of the
requisite principal amount of the outstanding senior securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of holders of senior securities for quorum purposes,
the principal amount of an original issue discount senior security that shall be
deemed to be outstanding shall be the amount that would be due and payable as of
the date of such determination upon acceleration of the maturity thereof.
The Indenture contains provisions for convening meetings of the holders
of senior securities of any or all series. A meeting may be called at any time
by the trustee, and also, upon request, by us or the holders of at least 33 1/3%
in aggregate principal amount of the outstanding senior securities of such
37
series, in any such case upon notice given in accordance with "Notices" below.
Except for any consent that must be given by the holder of each outstanding
senior security affected thereby, as described above, any resolution presented
at a meeting or adjourned meeting at which a quorum is present may be adopted by
the affirmative vote of the holders of a majority in principal amount of the
outstanding senior securities of that series; provided, however, that, except
for any consent that must be given by the holder of each outstanding senior
security affected thereby, as described above, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action that may be made, given or taken by the holders of not less than a
specified percentage in principal amount of the outstanding senior securities of
a series may be adopted at a meeting or an adjourned meeting at which a quorum
is present only by the affirmative vote of the holders of not less than such
specified percentage in principal amount of the outstanding senior securities of
that series.
Any resolution passed or decision taken at any meeting of holders of
senior securities of any series duly held in accordance with the Indenture will
be binding on all holders of senior securities of that series. The quorum at any
meeting called to adopt a resolution, and at any adjourned meeting, will be
persons holding or representing a majority in principal amount of the
outstanding senior securities of a 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 that may be
given by the holders of not less than a specified percentage in principal amount
of the outstanding senior securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
senior securities of such series will constitute a quorum.
Defeasance and Covenant Defeasance
We may elect either (i) to defease and be discharged (and, if
applicable, to have Viacom International defeased and discharged) from any and
all obligations with respect to the senior securities (except as otherwise
provided in the Indenture) ("defeasance") or (ii) to be released from our
obligations with respect to certain covenants that are described in the
Indenture ("covenant defeasance"), upon the deposit with the trustee, in trust
for such purpose, of money and/or specified 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 senior 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, we must deliver to the trustee an opinion of counsel to the
effect that the holders of the senior 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.
We may exercise our defeasance option with respect to the senior
securities of any series notwithstanding our prior exercise of our covenant
defeasance option. If we exercise our defeasance option, payment of the senior
securities of such series may not be accelerated because of an event of default
and the guarantees relating to such senior securities will cease to exist. If we
exercise our covenant defeasance option, payment of the senior securities of
such series may not be accelerated by reference to any covenant from which we
are 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 senior securities of such series, in that
the required deposit in the defeasance trust is based upon
38
scheduled cash flows rather than market value, which will vary depending upon
interest rates and other factors.
Notices
Notices to holders of senior securities will be given by mail to the
addresses of such holders as they appear in the security register.
Title
We, Viacom International, as guarantor, the trustee and any agent of
us, Viacom International, as guarantor, or the trustee may treat the registered
owner of any registered senior security as the absolute owner thereof (whether
or not the senior security shall be overdue and notwithstanding any notice to
the contrary) for the purpose of making payment and for all other purposes.
Replacement of Senior Securities
We will replace any mutilated senior security at the expense of the
holders upon surrender to the trustee. We will replace senior securities that
become destroyed, lost or stolen at the expense of the holder upon delivery to
the trustee of satisfactory evidence of the destruction, loss or theft thereof.
In the event of a destroyed, lost or stolen senior security, an indemnity or
security satisfactory to us and the trustee may be required at the expense of
the holder of the senior security before a replacement senior security will be
issued.
Governing Law
The Indenture, the senior securities and the guarantees will be
governed by, and construed in accordance with, the laws of the State of New
York.
Regarding the Trustee
We and Viacom International maintain deposit accounts and banking and
borrowing relations with Citibank, N.A., the trustee under the Indenture, and
such trustee is currently a lender to us and Viacom International and certain of
our other subsidiaries. We may remove the trustee at any time with respect to
the senior securities of any series, provided that we immediately appoint a
successor trustee meeting the requirements for trustees specified in the
Indenture and provided further that no default with respect to such senior
securities has occurred and is continuing.
Certain Definitions
The following definitions are applicable to the Indenture:
"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
39
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 (a) to any
Subsidiary of such person or to any person with respect to which such person is
a Subsidiary or (b) specifically with respect to the production, distribution or
acquisition of motion pictures or other programming rights, talent or publishing
rights. When used with respect to Viacom, the term "Indebtedness" also includes
any obligation of Viacom International specified in clauses (i) through (v)
above to the extent that said Indebtedness is guaranteed by Viacom.
"Lien" means any pledge, mortgage, lien, encumbrance or other security
interest.
"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 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 majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other persons performing
similar functions).
40
UNITED STATES TAX CONSIDERATIONS
This description is based on the Internal Revenue Code of 1986, as
amended to the date hereof (the "Code"), administrative pronouncements, judicial
decisions and existing and proposed Treasury Regulations, and interpretations of
the foregoing, changes to any of which subsequent to the date of this prospectus
may affect the tax consequences described herein. These statements address only
the tax consequences to holders holding senior securities as capital assets
within the meaning of Section 1221 of the Code. They do not discuss all of the
tax consequences that may be relevant to holders in light of their particular
circumstances or to holders subject to special rules, such as certain financial
institutions, insurance companies, dealers in securities or foreign currencies,
United States Holders (as defined below) whose functional currency (as defined
in Code Section 985) is not the U.S. dollar, persons holding senior securities
in connection with a hedging transaction, "straddle", conversion transaction or
other integrated transaction, traders in securities that elect to mark to
market, holders liable for alternative minimum tax or persons who have ceased to
be United States citizens or to be taxed as resident aliens. Persons considering
the purchase of the senior securities should consult their tax advisors
concerning the application of United States federal income tax laws, as well as
the laws of any state, local or foreign taxing jurisdictions, to their
particular situations.
As used in this section, a "United States Holder" means a beneficial
owner of senior securities that is for United States federal income tax purposes
a holder that is a United States person (as defined in "Description of Senior
Securities--Payment of Additional Amounts").
As used in this section, the term "United States Alien Holder" means a
beneficial owner of senior securities that is, for United States federal income
tax purposes:
o a nonresident alien individual;
o a foreign corporation;
o a nonresident alien fiduciary of a foreign estate or trust; or
o a foreign partnership one or more of the members of which is a
nonresident alien individual, a foreign corporation or a
nonresident alien fiduciary of a foreign estate or trust.
Exchange Offer
The exchange of unregistered senior securities for exchange senior
securities pursuant to the exchange offer will not be a taxable event for United
States federal income tax purposes. Accordingly, a holder will not recognize
taxable gain or loss as a result of such exchange and will have the same
adjusted tax basis and holding period in the exchange senior securities as such
holder had in the unregistered senior securities immediately before the
exchange.
Tax Consequences to United States Holders
Payments of Interest
Interest on senior securities will generally be taxable to a United
States Holder as ordinary interest income at the time it accrues or is received
in accordance with the United States Holder's method of accounting for federal
income tax purposes.
41
Sale, Exchange or Retirement
Upon the sale, exchange or retirement of senior securities, a United
States Holder will recognize gain or loss equal to the difference between the
amount realized on the sale, exchange or retirement of the senior securities and
such holder's adjusted tax basis in the senior securities. A United States
Holder's adjusted tax basis in senior securities will equal the cost of the
senior securities to such holder, subject to possible reduction by amortized
bond premium. The amount realized excludes any amounts attributable to unpaid
interest accrued between interest payment dates and not previously included in
income, which will be taxable as ordinary income. Such gain or loss will be
capital gain or loss and will be long-term capital gain or loss if at the time
of the sale, exchange or retirement the senior securities have been held for
more than one year. Under current laws, the excess of the taxpayer's net
long-term capital gains over net short-term capital losses is taxed at a lower
rate than ordinary income for certain non-corporate taxpayers. The distinction
between capital gain or loss and ordinary income or loss is also relevant for
purposes of, among other things, the limitations on the deductibility of capital
losses.
Amortizable Bond Premium
In general, if a United States Holder purchases a senior security at a
premium (that is, for an amount in excess of the amount payable upon the
maturity thereof), such holder will be considered to have purchased such senior
security with "amortizable bond premium" equal to the amount of such excess.
Such holder may elect to amortize such bond premium as an offset to interest
income, and not as a separate deduction item, as it accrues under a
constant-yield method over the remaining term of the senior security. Such
holder's tax basis in the senior security will be reduced by the amount of the
amortized bond premium. Any such election shall apply to all debt instruments
(other than instruments the interest on which is excludible from gross income)
held by the United States Holder at the beginning of the first taxable year for
which the election applies or thereafter acquired and is irrevocable without the
consent of the Internal Revenue Service. Bond premium on senior securities held
by a United States Holder who does not elect to amortize the premium will
decrease the gain or increase the loss otherwise recognized on the disposition
of the senior securities.
Market Discount
If a United States Holder purchases a senior security for less than its
principal amount, the difference will be treated as a "market discount" for U.S.
federal income tax purposes subject to a de minimus exception.
Under the market discount rules, a United States Holder will be
required to treat any principal payment on a senior security, or any gain on its
sale, exchange, retirement or other disposition, as ordinary income to the
extent of the accrued market discount which was not previously included in gross
income. If the senior security is disposed of in a non-taxable transaction
(other than a nonrecognition transaction described in section 1276 of the Code),
accrued market discount will be taxable to the United States Holder as ordinary
income as if the United States Holder had sold the senior security at its fair
market value. In addition, a United States Holder may be required to defer,
until the maturity of a senior security or its earlier disposition (including a
non-taxable transaction other than a transaction described in section 1276 of
the Code), the deduction of all or a portion of the interest expense in respect
of any indebtedness incurred or continued to purchase or carry the senior
security. Market discount will be considered to accrue on a straight-line basis
during the period from the date of acquisition to the maturity date of the
senior security, unless the United States Holder elects to accrue on a
constant-yield basis.
42
A United States Holder may elect to include market discount in income
as it accrues --on either a ratable or constant-yield basis. If a United States
Holder makes this election, the rules regarding the treatment of gain upon the
disposition of the senior security and upon the receipt of principal payments as
ordinary income and regarding the deferral of interest deductions will not
apply. If a United States Holder elects to include market discount in income as
it accrues, the election will apply to all market discount obligations acquired
during or after the first taxable year to which the election applies. This
election may not be revoked without the consent of the Internal Revenue Service.
Tax Consequences to United States Alien Holders
Under present United States federal tax law, and subject to the
discussion below concerning backup withholding:
(a) payments of principal, interest and premium on the senior
securities by Viacom or its paying agent to any United States Alien Holder will
be exempt from the 30% United States federal withholding tax, provided that (i)
such holder does not own, actually or constructively, 10% or more of the total
combined voting power of all classes of stock of Viacom entitled to vote, (ii)
such holder is not a controlled foreign corporation related, directly or
indirectly, to Viacom through stock ownership, and (iii) the requirement to
certify such holder's non-U.S. status, as set forth in section 871(h) or section
881(c) of the Code, has been fulfilled with respect to the beneficial owner, as
discussed below;
(b) a United States Alien Holder of senior securities will not be
subject to United States federal income tax on gain realized on the sale,
exchange or retirement of such senior securities, unless (i) such holder is an
individual who is present in the United States for 183 days or more in the
taxable year of the disposition, and either the gain is attributable to an
office or other fixed place of business maintained by such individual in the
United States or, generally, such individual has a "tax home" in the United
States or (ii) such gain is effectively connected with such holder's conduct of
a trade or business in the United States (and, if an income tax treaty applies,
generally is attributable to a U.S. "permanent establishment" maintained by such
holder); and
(c) senior securities held by an individual who is not, for United
States estate tax purposes, a resident or citizen of the United States at the
time of his death will not be subject to United States federal estate tax,
provided that the individual does not own, actually or constructively, 10% or
more of the total combined voting power of all classes of stock of Viacom
entitled to vote and, at the time of such individual's death, payments with
respect to such senior securities would not have been effectively connected with
the conduct by such individual of a trade or business in the United States.
The certification requirement referred to in subparagraph (a) will be
fulfilled if the beneficial owner of senior securities certifies on Internal
Revenue Service Form W-8BEN or successor form under penalties of perjury, that
it is not a United States person and provides its name and address, and (i) such
beneficial owner files such Form W-8BEN or successor form with the withholding
agent or (ii) in the case of senior securities held on behalf of the beneficial
owners by a securities clearing organization, bank or other financial
institution holding customers' securities in the ordinary course of its trade or
business, such financial institution files with the withholding agent a
statement that it has received the Form W-8BEN or successor form from the United
States Alien Holder, furnishes the withholding agent with a copy thereof and
otherwise complies with the applicable Internal Revenue Service requirements.
Alternatively, these certification requirements will not apply if the
beneficial owner of the senior securities holds those securities directly
through a "qualified intermediary"(which is a non-U.S. office of a bank,
securities dealer or similar intermediary that has signed an agreement with the
Internal Revenue Service concerning withholding tax procedures), the qualified
intermediary has sufficient information in
43
its files to indicate that the holder is a United States Alien Holder and the
intermediary complies with Internal Revenue Service requirements. Special rules
may apply with respect to senior securities held by a foreign partnership.
Prospective investors, including foreign partnerships and their partners and
holders who hold their senior securities through a qualified intermediary,
should consult their tax advisers regarding possible reporting requirements.
If a United States Alien Holder of senior securities is engaged in a
trade or business in the United States, and if interest on the senior securities
(or gain realized on their sale, exchange or other disposition) is effectively
connected with the conduct of such trade or business (and, if an income tax
treaty applies, generally is attributable to a U.S. "permanent establishment"
maintained by such holder), the United States Alien Holder, although exempt from
the withholding tax discussed in the preceding paragraphs, will be subject to
regular United States income tax on such effectively connected income, generally
in the same manner as if it were a United States Holder. See "Tax Consequences
to United States Holders" above. In lieu of the certificate described in the
preceding paragraph, such a holder will be required to provide to the
withholding agent a properly executed Internal Revenue Service Form W-8ECI or
successor form, as appropriate, to claim an exemption from withholding tax. In
addition, if such United States Alien Holder is a foreign corporation, it may be
subject to a 30% branch profits tax (unless reduced or eliminated by an
applicable treaty) on its earnings and profits for the taxable year attributable
to such effectively connected income, subject to certain adjustments.
Interest payments made to a United States Alien Holder will generally
be reported to such holder and to the Internal Revenue Service on Form 1042-S.
However, this reporting does not apply if such holder holds the senior
securities directly through a qualified intermediary.
Backup Withholding and Information Reporting
Under current United States federal income tax law, information
reporting requirements apply to certain payments of principal, premium, market
discount and interest made to, and to the proceeds of sales before maturity by,
non-corporate United States Holders. In addition, a 31% backup withholding tax
will apply if the noncorporate United States Holder (i) fails to furnish its
Taxpayer Identification Number ("TIN") which, for an individual, is his Social
Security Number, (ii) furnishes an incorrect TIN, (iii) is notified by the
Internal Revenue Service that it is subject to backup withholding for failure to
report interest and dividend payments, or (iv) under certain circumstances fails
to certify, under penalties of perjury, that it has furnished a correct TIN and
has not been notified by the Internal Revenue Service that it is subject to
backup withholding for failure to report interest and dividend payments. Holders
should consult their tax advisers regarding their qualification for exemption
from backup withholding and the procedure for obtaining such an exemption if
applicable.
Backup withholding will not apply to payments made on senior securities
if the certifications required by Sections 871(h) and 881(c) as described above
are received or if the exemption for qualified intermediaries discussed above
applies, provided that Viacom or its paying agent or the qualified intermediary,
as the case may be, does not have actual knowledge or reason to know that the
payee is a United States person.
Under current Treasury Regulations, payments on the sale, exchange or
other disposition of senior securities made to or through a foreign office of a
broker generally will not be subject to backup withholding. However, if such
broker is:
o a United States person;
o a controlled foreign corporation for United States federal
income tax purposes;
44
o a foreign person 50% or more of whose gross income for certain
periods is effectively connected with a United States trade or
business; or
o a foreign partnership with certain connections to the United
States;
then information reporting will be required unless the broker has in its records
documentary evidence that the beneficial owner is not a United States person and
certain other conditions are met or the beneficial owner otherwise establishes
an exemption. Backup withholding may apply to any payment that such broker is
required to report if the broker has actual knowledge or reason to know that the
payee is a United States person. Payments to or through the United States office
of a broker will be subject to backup withholding and information reporting
unless such holder certifies, under penalties of perjury, that it is not a
United States person and the payor does not have actual knowledge or reason to
know that such holder is a United States person, or such holder otherwise
establishes an exemption.
United States Alien Holders of senior securities should consult their
tax advisers regarding the application of information reporting and backup
withholding in their particular situations, the availability of an exemption
therefrom, and the procedure for obtaining such an exemption, if available. Any
amounts withheld from a payment to a United States Alien Holder under the backup
withholding rules will be allowed as a credit against such holder's United
States federal income tax liability and may entitle such holder to a refund,
provided that such holder files a United States income tax return and the
required information is furnished to the Internal Revenue Service.
45
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange senior securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange senior securities.
This prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of exchange senior securities
received in exchange for unregistered senior securities where such unregistered
senior securities were acquired as a result of market-making activities or other
trading activities. We have agreed that, for a period of 180 days after the
expiration of the exchange offer, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until 90 days after the date of this prospectus, all
dealers effecting transactions in the exchange senior securities may be required
to deliver a prospectus.
We will not receive any proceeds from any sale of exchange senior
securities by broker-dealers. Exchange senior securities received by
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the exchange senior
securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such exchange senior securities. Any broker-dealer that
resells exchange senior securities that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange senior securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of exchange senior securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
46
LEGAL MATTERS
The validity of the exchange senior securities and the guarantees will
be passed upon for Viacom and Viacom International by Shearman & Sterling, New
York, New York.
EXPERTS
Our financial statements incorporated by reference in this prospectus
from our Annual Report on Form 10-K for the year ended December 31, 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 and schedule of CBS 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 the CBS's Annual Report on Form 10-K for the year ended December 31, 1999,
have been audited by KPMG LLP, independent accountants, 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 and schedule 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 accountants, 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.
47
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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.
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.
II-i
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
See the index to exhibits that appears immediately following
the signature pages of this Registration Statement.
(b) Financial Statement Schedules
Not applicable.
Item 22. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or 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 Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) 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 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-ii
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the provisions described in Item 20, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that the claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(6) To respond to requests for information that is incorporated by reference
into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed after the effective date of this Registration
Statement through the date of responding to the request.
(7) To supply by means of a post-effective amendment all information concerning
a transaction, and the company being acquired involved therein, that was not the
subject of and included in this Registration Statement when it became effective.
II-iii
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 July 13, 2001.
VIACOM INC.
By: /s/ Sumner M. 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 indicated.
Signatures Title Date
---------- ----- ----
/s/ Sumner M. Redstone Chairman of the Board of Directors, July 13, 2001
- ---------------------------------------- Chief Executive Officer and Director
Sumner M. Redstone (Principal Executive Officer)
/s/ Richard J. Bressler Senior Executive Vice President and July 13, 2001
- ---------------------------------------- Chief Financial Officer
Richard J. Bressler (Principal Financial Officer)
/s/ Susan C. Gordon Vice President, Controller and July 13, 2001
- ---------------------------------------- Chief Accounting Officer
Susan C. Gordon (Principal Accounting Officer)
* Director
- ----------------------------------------
George S. Abrams
* Director
- ----------------------------------------
David R. Andelman
* Director
- ----------------------------------------
George H. Conrades
* Director
- ----------------------------------------
Philippe P. Dauman
* Director
- ----------------------------------------
William H. Gray III
* Director
- ----------------------------------------
Mel Karmazin
Signatures Title Date
---------- ----- ----
* Director
- ----------------------------------------
Jan Leschly
* Director
- ----------------------------------------
David T. McLaughlin
* Director
- ----------------------------------------
Ken Miller
* 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 July 13, 2001
-------------------------------------
Michael D. Fricklas,
Attorney-in-Fact
For the Directors
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-4 and 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 July 13, 2001.
VIACOM INTERNATIONAL INC.
By: /s/ Mel Karmazin
---------------------------------
Name: Mel Karmazin
Title: President, Chief Executive
Officer and Chief
Operating 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 indicated.
Signatures Title Date
---------- ----- ----
/s/ Mel Karmazin President, July 13, 2001
- ---------------------------------------- Chief Executive Officer and
Mel Karmazin Chief Operating Officer
/s/ Richard J. Bressler Senior Executive Vice President, July 13, 2001
- ---------------------------------------- Chief Financial Officer,
Richard J. Bressler General Counsel, Secretary
and Director
/s/ Michael D. Fricklas Executive Vice President and Director July 13, 2001
- ----------------------------------------
Michael D. Fricklas
/s/ Susan C. Gordon Vice President, Controller and Chief July 13, 2001
- ---------------------------------------- Accounting Officer
Susan C. Gordon
INDEX TO EXHIBITS
Exhibit
Number Description
- ------------ ------------
1.1* Purchase Agreement, dated May 10, 2001, by and among Viacom
Inc., Viacom International Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Salomon Smith Barney Inc., as
representatives of the several initial purchasers.
1.2 Purchase Agreement, dated January 9, 2001, by and among Viacom
Inc., Viacom International Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Salomon Smith Barney Inc., as
representatives of the several initial purchasers
(incorporated herein by reference to Exhibit 1.1 of Viacom's
Form S-4 dated January 30, 2001).
4.1* Indenture, dated as of May 15, 1995, among Viacom, Viacom
International, as guarantor, and Citibank, N.A., as successor
to State Street Bank and Trust Company and The First National
Bank of Boston, Trustee.
4.2* First Supplemental Indenture, dated as of May 24, 1995.
4.3* Second Supplemental Indenture and Amendment No. 1, dated as of
December 15, 1995.
4.4* Third Supplemental Indenture, dated as of July 22, 1996.
4.5 Fourth Supplemental Indenture, dated as of August 1, 2000
(incorporated herein by reference to Exhibit 4.3 of Viacom's
Current Report on Form 8-K dated July 25, 2000).
4.6 Fifth Supplemental Indenture, dated as of January 17, 2001
(incorporated herein by reference to Exhibit 4.6 of Viacom's
registration statement on Form S-4 dated January 30, 2001).
4.7 Sixth Supplemental Indenture, dated as of May 17, 2001
(incorporated herein by reference to Exhibit 4.9 of Viacom's
registration statement on Form S-3 dated May 31, 2001).
4.8 Seventh Supplemental Indenture, dated as of May 31, 2001
(incorporated herein by reference to Exhibit 4.10 of Viacom's
registration statement on Form S-3 dated May 31, 2001).
4.9 Form of 2006 Exchange Note (incorporated herein by reference
to Exhibit 4.7 of Viacom's registration statement on Form S-4
dated January 30, 2001).
4.10* Form of 2011 Exchange Note.
4.11 Form of 2010 Exchange Note (incorporated herein by reference
to Exhibit 4.8 of Viacom's registration statement on Form S-4
dated January 30, 2001).
4.12 Form of Exchange Debenture (incorporated herein by reference
to Exhibit 4.9 of Viacom's registration statement on Form S-4
dated January 30, 2001).
4.13* Registration Rights Agreement dated as of May 17, 2001 among
Viacom Inc., Viacom International Inc. and the Initial
Purchasers.
5.1* Opinion and Consent of Shearman & Sterling regarding validity
of the exchange senior securities and the guarantees.
12.1 Statements regarding computation of ratios (incorporated
herein by reference to Exhibit 12.1 of Viacom's registration
statement on Form S-3 dated May 31, 2001).
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of KPMG LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24.1* Powers of Attorney.
25.1* Statement of Eligibility of the Trustee on Form T-1.
99.1* Form of Letter of Transmittal for the 2006 Exchange Notes and
the 2011 Exchange Notes.
99.2* Form of Letter of Transmittal for the 2006 Exchange Notes,
2010 Exchange Notes and Exchange Debentures.
99.3* Form of Notice of Guaranteed Delivery for the 2006 Exchange
Notes and the 2011 Exchange Notes.
99.4* Form of Notice of Guaranteed Delivery for the 2006 Exchange
Notes, 2010 Exchange Notes and Exchange Debentures.
99.5* Form of Exchange Agent Agreement.
- ----------
* Filed herewith.
Exhibit 1.1
VIACOM INC.
VIACOM INTERNATIONAL INC.
6.40% SENIOR NOTES DUE 2006
6.625% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
New York, New York
May 10, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Smith Barney Inc.
As Representatives of the
several Initial Purchasers
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
Ladies and Gentlemen:
Viacom Inc. a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch"), Salomon Smith Barney Inc. ("Salomon Smith Barney"), and each of the
other Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser substituted as
hereinafter provided in Section 12 hereof), for whom Merrill Lynch and Salomon
Smith Barney are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $400,000,000
aggregate principal amount of the Company's 6.40% Senior Notes due 2006 and
$1,000,000,000 aggregate principal amount of the Company's 6.625% Senior Notes
due 2011 each of which is guaranteed on an unsecured basis (the "Guarantee") by
Viacom International Inc., a Delaware corporation (the "Guarantor"). The Senior
Notes due 2006 and the Senior Notes due 2011
together with the Guarantees are referred to collectively as the "Securities".
The Securities are to be issued under an indenture dated as of May 15, 1995
among the Company, the Guarantor and Citibank, N.A., as successor to State
Street Bank and Trust Company, as successor to The First National Bank of
Boston, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture thereto, dated as of May 24, 1995, the Second Supplemental Indenture
and Amendment No. 1, dated as of December 15, 1995, the Third Supplemental
Indenture, dated as of July 22, 1996, the Fourth Supplemental Indenture, dated
as of August 1, 2000, the Fifth Supplemental Indenture dated as of January 17,
2001 and the Sixth Supplemental Indenture to be dated as of May 17, 2001 (as so
supplemented and amended, the "Indenture").
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after this Agreement has been executed and delivered.
The Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, Subsequent Purchasers may only resell or otherwise transfer
such Securities if such Securities are hereafter registered under the 1933 Act
or if an exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") of the rules and regulations promulgated under the
1933 Act by the Securities and Exchange Commission (the "Commission")).
The Company will prepare and will deliver to each Initial Purchaser, on
or about May 10, 2001 copies of a final offering memorandum dated May 10, 2001
(the "Offering Memorandum"), for use by such Initial Purchaser in connection
with its solicitation of purchases of, or offering of, the Securities. "Offering
Memorandum" means, with respect to any date or time referred to in this
Agreement, the most recent offering memorandum (the Offering Memorandum, and any
amendment or supplement thereto), including exhibits thereto and any documents
incorporated therein by reference, which has been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities, and including any supplement
relating to the Securities distributed to the Luxembourg Stock Exchange.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
Holders of the Securities (including subsequent transferees) will have
the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement") substantially in the same form as the
Registration Rights Agreement dated January 17, 2001, to be executed on and
dated as of the Closing Time (as defined below). Pursuant to the
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Registration Rights Agreement, the Company and the guarantor will agree, among
other things, to file with the Commission (i) a registration statement under the
1933 Act relating to, among other things, exchange notes identical in all
material respects to the Senior Notes due 2006 and the Senior Notes due 2011
(except that the exchange notes shall have been registered pursuant to such
registration statement, will not provide for any increase in the interest rate
in connection with the failure to file such registration statement, and will be
issuable in denominations of $1,000 and integral multiples thereof) to be
offered in exchange for the Senior Notes due 2006 and the Senior Notes due 2011,
respectively (collectively, the "Exchange Securities") and, (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
1933 Act relating to the resale by certain holders of the Senior Notes due 2006
and the Senior Notes due 2011.
SECTION 1. Representations and Warranties by the Company and the
Guarantor.
(a) Representations and Warranties. The Company and the Guarantor,
jointly and severally, represent and warrant to each Initial Purchaser as of the
date hereof and as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Initial Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and
at the Closing Time will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Offering Memorandum in reliance upon and in conformity
with information furnished to the Company in writing by or on behalf of
any Initial Purchaser through the Representatives specifically for use
in the Offering Memorandum.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Offering Memorandum at
the time they were or hereafter are filed with the Commission complied
and will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations").
(iii) Independent Accountants. The accountants who certified
the financial statements and any supporting schedules included in the
Offering Memorandum are independent public accountants as required by
the 1933 Act and the applicable rules and regulations of the Commission
thereunder (the "1933 Act Regulations").
(iv) Financial Statements. The financial statements of the
Company, CBS Corporation and Infinity Broadcasting Corporation included
in the Offering Memorandum, together with the related schedules and
notes, as well as those financial statements, schedules and notes of
any other entity included therein present fairly the financial position
of the Company at the dates indicated, and the statement of operations,
stockholders' equity and cash flows of the Company, CBS Corporation and
Infinity Broadcasting Corporation for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied
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on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Offering Memorandum present fairly
in accordance with GAAP the information required to be stated therein.
The capitalization table, the summary financial data for the Company,
the summary historical financial data for CBS Corporation, the summary
unaudited pro forma combined financial data and the ratio of earnings
to fixed charges included in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Offering
Memorandum. In addition, any pro forma financial statements of the
Company, CBS Corporation, Infinity Broadcasting Corporation and their
subsidiaries and the related notes thereto included in the Offering
Memorandum present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the financial condition, results of
operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), and (B) there have
been no material transactions entered into by the Company other than
transactions contemplated by the Offering Memorandum or transactions
arising in the ordinary course of business.
(vi) Good Standing. The Company and the Guarantor have been
duly organized and are validly existing as corporations in good
standing under the laws of the State of Delaware and have corporate
power and authority to own, lease and operate their respective
properties and to conduct their respective businesses as described in
the Offering Memorandum and to enter into and perform their respective
obligations under, or as contemplated under, this Agreement. The
Company and the Guarantor are duly qualified as foreign corporations to
transact business and are in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failures to so qualify or be in good standing would not in
the aggregate result in a Material Adverse Effect.
(vii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if any,
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering
Memorandum and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failures to so qualify or be in good standing would not in the
aggregate result in a Material Adverse Effect.
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(viii) Capitalization. All of the outstanding shares of
capital stock of the Guarantor have been duly authorized and validly
issued, are fully paid and non-assessable, and are wholly owned by the
Company, and are free and clear of any lien, adverse claim, security
interest, equity or other encumbrance except as described in the
Offering Memorandum and except for such liens, adverse claims, security
interests, equity or other encumbrances that are immaterial to the
Company and its subsidiaries taken as a whole.
(ix) Authorization of Agreements. This Agreement has been duly
authorized, executed and delivered by the Company and the Guarantor,
and the Registration Rights Agreement has been duly authorized by the
Company and the Guarantor and will have been duly executed and
delivered at the Closing Time.
(x) Authorization of the Securities and the Exchange
Securities. The Securities and the Exchange Securities have been duly
authorized by the Company and the Guarantor, as the case may be, for
issuance and sale pursuant to this Agreement. The Securities and the
Exchange Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor specified in this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company and the Guarantor, as
the case may be, entitled to the benefits of the Indenture, enforceable
against the Company and the Guarantor, as the case may be, in
accordance with their terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered
in a proceeding in equity or at law).
(xi) Authorization of the Indenture. The Indenture has been
duly authorized, executed and delivered by the Company and the
Guarantor and, upon such authorization, execution and delivery, will
constitute a valid and binding agreement of the Company and the
Guarantor, enforceable against the Company and the Guarantor in
accordance with its terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration, if any, and the availability
of equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding in
equity or at law).
(xii) Description of the Securities, the Exchange Securities
and the Indenture. The Securities, the Exchange Securities and the
Indenture conform in all material respects to the statements relating
thereto contained in the Offering Memorandum.
(xiii) Absence of Defaults and Conflicts. The issue and sale
of the Securities and the Exchange Securities and compliance by the
Company and the Guarantor with all of the provisions of the Securities,
the Exchange Securities, the Indenture, this
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Agreement and the Registration Rights Agreement and the consummation of
the transactions contemplated herein and therein do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company, the Guarantor or any of their
respective subsidiaries is a party or by which it or any of them may be
bound, or to which any of the assets, properties or operations of the
Company, the Guarantor or any of their respective subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company, the Guarantor or any of their
respective subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Guarantor or any of their respective
subsidiaries or any of their assets, properties or operations, except,
in any such case, for such conflicts, breaches or violations as would
not individually or in the aggregate result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company, the Guarantor or any of
their respective subsidiaries.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company or the Guarantor threatened, against or
affecting the Company, the Guarantor or any of their respective
subsidiaries which is required to be disclosed in the Offering
Memorandum (other than as stated therein), or which individually or in
the aggregate would result in a Material Adverse Effect, or which would
materially and adversely affect the consummation of the transactions
contemplated under the Offering Memorandum, this Agreement, the
Registration Rights Agreement or the Indenture or the performance by
the Company or the Guarantor of their respective obligations hereunder
and thereunder.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company or the Guarantor
of this Agreement, the Registration Rights Agreement or for the
performance by the Company or the Guarantor of the transactions
contemplated under the Offering Memorandum, this Agreement, the
Registration Rights Agreement or the Indenture, except such as have
been already made, obtained or rendered, as applicable, and as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers
or as may be required in connection with any registration statement
required pursuant to the terms of the Registration Rights Agreement and
except where the failure to obtain any such filing, authorization,
approval, consent, license, order, registration, qualification or
decree will not individually or in the aggregate result in a Material
Adverse Effect.
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(xvi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) Similar Offerings. Neither the Company nor the
Guarantor nor any of their affiliates, as such term is defined in Rule
501(b) under the 1933 Act (each, an "Affiliate"), has, directly or
indirectly, solicited any offer to buy, sold or offered to sell or
otherwise negotiated in respect of, or will solicit any offer to buy,
sell or offer to sell or otherwise negotiate in respect of, in the
United States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the
1933 Act.
(xviii) Rule 144A Eligibility. The Securities are eligible for
resale pursuant to Rule 144A and will not be, at the Closing Time, of
the same class as securities listed on a national securities exchange
registered under Section 6 of the 1934 Act, or quoted in a U.S.
automated interdealer quotation system.
(xix) No General Solicitation. None of the Company, the
Guarantor, their Affiliates or any person acting on any of their behalf
(other than the Initial Purchasers, as to whom the Company and the
Guarantor make no representation) has engaged or will engage, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the 1933 Act.
(xx) No Registration Required. Subject to compliance by the
Initial Purchasers with the procedures and the representations and
warranties set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the 1933 Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(xxi) Reporting Company. The Company is subject to the
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(xxii) No Directed Selling Efforts. With respect to those
Securities sold in reliance on Regulation S, (A) none of the Company,
the Guarantor, their Affiliates or any person acting on any of their
behalf (other than the Initial Purchasers, as to whom the Company makes
no representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (B) each of the Company,
the Guarantor and their Affiliates and any person acting on any of
their behalf (other than the Initial Purchasers, as to whom the Company
and the Guarantor make no representation) has complied and will comply
with the offering restrictions requirement of Regulation S.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company, the Guarantor or any of their subsidiaries delivered to the
Representatives or to counsel for the Initial
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Purchasers shall be deemed a representation and warranty by the Company or the
Guarantor, as the case may be, to each Initial Purchaser as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to each of the Initial Purchasers and each
of the Initial Purchasers agrees, severally and not jointly, to purchase from
the Company, at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such Initial
Purchaser, plus any additional principal amount of Securities which such Initial
Purchaser may become obligated to purchase pursuant to the provisions of Section
12 hereof.
(b) Payment. Payment of the purchase price for, and delivery of the
Securities shall be made at the offices of Salomon Smith Barney, 388 Greenwich
Street, New York, New York 10013, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on May 17,
2001 (unless postponed in accordance with the provisions of Section 12), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Initial Purchasers of the
Securities to be purchased by them. It is understood that each Initial Purchaser
has authorized the Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Securities which it
has severally agreed to purchase. The Representatives, individually and not as
representatives of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder. Delivery of the Securities shall be made through the facilities of
the Depository Trust Company ("DTC"), Clearstream Luxembourg or Euroclear unless
the Representatives shall otherwise instruct.
SECTION 3. Covenants of the Company and the Guarantor. The Company and
the Guarantor jointly and severally covenant with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Company and the Guarantor, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Offering Memorandum as such Initial Purchaser may reasonably
request.
(b) Notice and Effect of Material Events. The Company and the Guarantor
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company or the Guarantor of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction, and (y)
prior to the completion of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the Initial Purchasers to
the Company, any material changes in or affecting the condition, financial or
otherwise, or the earnings or business
- 8 -
affairs of the Company and its subsidiaries considered as one enterprise which
(i) make any statement in the Offering Memorandum false or misleading or (ii)
are not disclosed in the Offering Memorandum as a result of which the Offering
Memorandum omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. In such event or if during such time any event shall occur as a
result of which it is necessary, in the reasonable opinion of any of the
Company, its counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the Offering Memorandum in order that the
Offering Memorandum not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances then existing, the Company will
forthwith amend or supplement the Offering Memorandum by preparing and
furnishing to each Initial Purchaser an amendment or amendments of, or a
supplement or supplements to, the Offering Memorandum (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial Purchasers) so
that, as so amended or supplemented, the Offering Memorandum will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. Until the Closing
Time, the Company and the Guarantor will advise the Representatives promptly of
their intention to amend or supplement the Offering Memorandum, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to their use, and will not use any such document to which the
Representatives or counsel to the Representatives shall reasonably object.
(d) Blue Sky Qualifications. The Company and the Guarantor will use
their best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date hereof; provided, however, that the Company and the
Guarantor shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company and the Guarantor will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof.
(e) DTC. The Company will cooperate with the Representatives and use
its reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC.
(f) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds".
(g) Listing on Securities Exchange. The Company has caused the
Securities, and will use its best efforts to cause the Exchange Securities, to
be listed or admitted to trading on the Luxembourg Stock Exchange.
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(h) Restriction on Sale of Securities. Between the date of this
Agreement and the Closing Time, neither the Company nor the Guarantor will,
without the prior written consent of the Representatives, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the
sale of, any securities of the Company or the Guarantor substantially similar to
the Securities.
(i) Reporting Requirements. Until the Closing Time, the Company and the
Guarantor will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company and the Guarantor will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, delivery to the Initial
Purchasers of the Offering Memorandum (including financial statements and any
schedules or exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto, (ii) the preparation, printing and
delivery to the Initial Purchasers of this Agreement, any Agreement among
Initial Purchasers, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Initial Purchasers, including any transfer taxes, any
stamp or other duties payable upon the sale, issuance and delivery of the
Securities to the Initial Purchasers and any charges of DTC in connection
therewith, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors or agents (including transfer agents and registrars), as well
as the fees and disbursements of the Trustee and its respective counsel, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection
therewith and in connection with the preparation, printing and delivery of the
Blue Sky Survey, and any amendment thereto, (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(vii) any fees and expenses payable in connection with the initial and continued
designation, if any, of the Securities as PORTAL securities under the PORTAL
Market Rules pursuant to NASD Rule 5322, and (viii) any fees and expenses
payable in connection with the initial and continued listing of the securities
on any non-U.S. securities exchange including the Luxembourg Stock Exchange, and
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Initial Purchasers in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Securities.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Guarantor
contained in Section 1 hereof or in certificates of any officer of the Company,
the Guarantor or any of their respective subsidiaries delivered pursuant to the
provisions hereof, to the performance by the Company and the Guarantor of their
respective covenants and other obligations hereunder, and to the following
further conditions:
(a) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Shearman & Sterling, counsel for the Company and the Guarantor,
in form and substance satisfactory to counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
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(b) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Hughes Hubbard & Reed LLP, counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
(c) Officers' Certificate. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the financial condition, results of
operations or business affairs of the Company, the Guarantor and their
respective subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and the
Guarantor and of the chief financial officer or chief accounting officer of the
Company and the Guarantor, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, and (iii) the Company and
the Guarantor have complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Time.
(d) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained or incorporated by reference in the Offering Memorandum.
(e) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(f) Ratings. On the date hereof or prior to the Closing Time, there
shall not have occurred any downgrading in the rating of any debt securities of
the Company or the Guarantor by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company or the Guarantor (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating).
(g) Approval of Listing. At the Closing Time, the Securities and the
Exchange Securities shall have been approved for listing, subject only to
official notice of issuance, on the Luxembourg Stock Exchange.
(h) No Objection. If the Offering Memorandum has been filed with the
NASD for review, the NASD shall not have raised any objection with respect to
the fairness and
- 11 -
reasonableness of the terms and arrangements relating to the distribution of the
securities by the Initial Purchasers.
(i) Registration Rights Agreement. At or prior to the Closing Time, the
Company and the Guarantor shall have entered into the Registration Rights
Agreement.
(j) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Initial Purchasers.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers, the
Company and the Guarantor hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers.
Offers and sales of the Securities shall only be made (A) to persons
whom the offeror or seller reasonably believes to be qualified
institutional buyers, as defined in Rule 144A under the 1933 Act
("Qualified Institutional Buyers"), or (B) non-U.S. persons outside the
United States, as defined in Regulation S under the 1933 Act, to whom
the offeror or seller reasonably believes offers and sales of the
Securities may be made in reliance upon Regulation S under the 1933
Act. Each Initial Purchaser severally agrees that it will not offer,
sell or deliver any of the Securities in any jurisdiction outside the
United States except under circumstances that will result in compliance
with the applicable laws thereof, and that it will take at its own
expense whatever action is required to permit its purchase and resale
of the Securities in such jurisdictions.
(ii) No General Solicitation. No general solicitation or
general advertising (within the meaning of Rule 502(c) under the 1933
Act) will be used in the United States in connection with the offering
or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Security acting as a fiduciary for
one or more third parties, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer or
a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser
will take reasonable steps to inform, and cause each of its U.S.
affiliates to take reasonable steps to inform, persons acquiring
Securities from such Initial Purchaser or affiliate, as the case may
be, in the United States that the Securities (A) have not been and will
not be registered under the 1933 Act, (B) are being sold to them
without registration under the 1933 Act in reliance on Rule 144A or in
accordance with another exemption from
12
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3)
inside the United States in accordance with (x) Rule 144A to a person
whom the seller reasonably believes is a Qualified Institutional Buyer
that is purchasing such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that
the offer, sale or transfer is being made in reliance on Rule 144A or
(y) pursuant to another available exemption from registration under the
1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any
one Subsequent Purchaser will be for less than U.S. $1,000 principal
amount and no Security will be issued in a smaller principal amount. If
the Subsequent Purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom it is acting must purchase at least U.S.
$1,000 principal amount of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and
the other provisions set forth in the Offering Memorandum under the
heading "Notice to Investors", including the legend required thereby,
shall apply to the Securities except as otherwise agreed by the Company
and the Initial Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser
will deliver to each U.S. purchaser (or otherwise as may be required by
applicable law) of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of
the Offering Memorandum, as amended and supplemented at the date of
such delivery.
(b) Covenants of the Company and the Guarantor. The Company and the
Guarantor jointly and severally covenant with each Initial Purchaser as follows:
(i) Integration. The Company and the Guarantor agree that they
will not and will cause their Affiliates not to, directly or
indirectly, solicit any offer to buy, sell or make any offer or sale
of, or otherwise negotiate in respect of, securities of the Company or
the Guarantor of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the 1933 Act, such offer or
sale would render invalid (for the purpose of (i) the sale of the
Securities by the Company to the Initial Purchasers, (ii) the resale of
the Securities by the Initial Purchasers to Subsequent Purchasers or
(iii) the resale of the Securities by such Subsequent Purchasers to
others) the exemption from the registration requirements of the 1933
Act provided by Section 4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(ii) Rule 144A Information. The Company and the Guarantor
agree that, in order to render the Securities eligible for resale
pursuant to Rule 144A under the 1933 Act, while any of the Securities
remain outstanding, they will make available, upon request, to any
holder of Securities or prospective purchasers of Securities the
information specified in Rule 144A(d)(4), unless the Company furnishes
information to the Commission pursuant to Section 13 or 15(d) of the
1934 Act.
13
(iii) Restriction on Resales. Until the expiration of two
years after the original issuance of the Securities, the Company and
the Guarantor will not, and will cause their Affiliates not to, resell
any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial
owner or otherwise (except as agent acting as a securities broker on
behalf of and for the account of customers in the ordinary course of
business in unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and
not jointly represents and warrants to, and agrees with, the Company that it is
a "qualified institutional buyer" within the meaning of Rule 144A under the 1933
Act (a "Qualified Institutional Buyer") and an "accredited investor" within the
meaning of Rule 501(a) under the 1933 Act.
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, Rule 144A under
the 1933 Act or another applicable exemption from the registration requirements
of the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates
nor any persons acting on their behalf have engaged or will engage in any
directed selling efforts with respect to Securities sold hereunder pursuant to
Regulation S, and the Initial Purchasers, their affiliates and any person acting
on their behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser severally agrees that, at
or prior to confirmation of a sale of Securities pursuant to Regulation S it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been
registered under the United States Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time and (ii)
otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of
closing, except in either case in accordance with Regulation S
or Rule 144A under the Securities Act. Terms used above have
the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(e) Additional Representations and Warranties of Initial Purchasers.
Each Initial Purchaser severally represents and agrees that it has not entered
and will not enter into any
14
contractual arrangements with respect to the distribution of the Securities,
except with its affiliates or with the prior written consent of the Company.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company and the
Guarantor jointly and severally agree to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Memorandum, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Company and the Guarantor; and
(iii) against any and all expense as reasonably incurred
(including the fees and disbursements of counsel chosen by the
Representatives), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum (or any amendment thereto).
(b) Indemnification of Company. Each Initial Purchaser severally agrees
to indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum.
15
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section or Section 8
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section
7 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Initial Purchasers on the other hand in connection with
16
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand, in connection with the offering of the
Securities under this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Securities
(before deducting expenses) received by the Company bear to the total
underwriting discounts received by the Initial Purchasers.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Guarantor and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased and sold by it hereunder exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section are several in proportion to
the principal amount of Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Covenants of the Initial
Purchasers.
(a) United Kingdom Selling Restrictions. Each Initial Purchaser agrees
that:
17
(i) it has not offered or sold and, prior to the expiry of the
period of six months from the issue date of the Securities, will not
offer to sell any Securities to persons in the United Kingdom, except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their business or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issuance of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order of 1996 as amended, or
is a person to whom such document may otherwise lawfully be issued or
pass on; and
(iii) it has complied and will comply with all applicable
provisions of the Financial Services Act with respect to anything done
by it in relation to the Securities in, from or otherwise involving the
United Kingdom
(b) The Netherlands Selling Restrictions. Each Initial Purchaser
represents and agrees that it has not, directly or indirectly, offered or sold
and will not directly or indirectly offer or sell in the Netherlands any
Securities other than to persons who trade or invest in securities in the
conduct of a profession or business (which include banks, stockbrokers,
insurance companies, pension funds, other institutional investors and finance
companies and treasury departments of large enterprises.)
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Initial Purchasers.
SECTION 11. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time, if (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the financial condition, results of
operations or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse change in the financial markets in
the United States or, if the Securities include securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, in the
international financial markets, or any outbreak of hostilities or escalation
thereof or other calamity or crisis or any material change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) trading in any securities of the Company has been
suspended or materially
18
limited by the Commission or the New York Stock Exchange or the American Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or, if
the Securities include securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 10 shall survive such termination and remain in full force and
effect.
SECTION 12. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(i) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities set forth on Schedule A hereto, the
non-defaulting Initial Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Initial Purchasers, or
(ii) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the aggregate principal
amount of the Securities set forth on Schedule A hereto, the
non-defaulting Initial Purchasers shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Initial Purchasers do not
purchase all the Securities, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser or the
Company.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Memorandum or in any other
documents or arrangements.
19
SECTION 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Representatives c/o Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281, attention of Peter Ross; and notices to the
Company and the Guarantor shall be directed to it at Viacom Inc., 1515 Broadway,
New York, New York 10036, attention of General Counsel.
SECTION 14. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company, the Guarantor, the Initial Purchasers and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between each of the Initial Purchasers, the Company and the Guarantor in
accordance with its terms.
Very truly yours,
VIACOM INC.
By: /s/ Robert G. Freedline
--------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
--------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Peter Ross
----------------------------------------------
Name: Peter Ross
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule A to
the foregoing Agreement.
21
SCHEDULE A
Principal Amount of Senior
Notes due 2006 to be Principal Amount of Senior
Initial Purchaser Purchased Notes due 2011 to be Purchased
- ------------------------------------------- --------------------------- ------------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $160,000,000 $400,000,000
Salomon Smith Barney Inc. 160,000,000 400,000,000
Credit Suisse First Boston Corporation 16,000,000 40,000,000
Barclays Capital Inc. 16,000,000 40,000,000
Bear, Stearns & Co. Inc. 16,000,000 40,000,000
UBS Warburg LLC 16,000,000 40,000,000
Scotia Capital (USA) Inc. 8,000,000 20,000,000
Utendahl Capital Partners, L.P. 8,000,000 20,000,000
--------------------------- ------------------------------
Total $400,000,000 $1,000,000,000
=========================== ==============================
Sch A-1
SCHEDULE B
1. The initial offering price for each of the Securities shall be
as follows:
Senior Notes due 2006: 101.450% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance
Senior Notes due 2011: 99.288% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance
2. The purchase price to be paid by the Initial Purchasers for
the Securities shall be a percentage of the principal amount thereof as
follows:
101.100% for the Senior Notes due 2006
98.838% for the Senior Notes due 2011
3. The interest rate on the Securities shall be as follows:
6.400% per annum for the Senior Notes due 2006
6.625% per annum for the Senior Notes due 2011
Sch B-1
Exhibit 4.1
EXECUTION COPY
================================================================================
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
---------------------------
Indenture
Dated as of May 15, 1995
---------------------------
Senior Debt Securities
================================================================================
EXECUTION COPY
VIACOM INTERNATIONAL INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 15,1995
----------------------------------------------
Trust Indenture Indenture
Act Section Section
- ----------------- -------------
ss. 310 (a)(1) ....................................................... 607
(a)(2) ...................................................... 607
(b) ....................................................... 608
ss. 312 (c) ....................................................... 701
ss. 314 (a) ....................................................... 703
(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
(c) ....................................................... 104(e)
ss. 317 (a)(1) ....................................................... 503
(a)(2) ....................................................... 504
(b) ....................................................... 1003
ss. 318 (a) ....................................................... 108
(c) ....................................................... 108
- ------------------------
EXECUTION COPY
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
-----------------
Page
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PARTIES........................................................................1
RECITALS OF THE COMPANY........................................................1
RECITAL OF THE GUARANTOR.......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions......................................... 1
Act...................................................... 2
Additional Amounts....................................... 2
Affiliate................................................ 2
Authenticating Agent..................................... 2
Authorized Newspaper..................................... 3
Bearer Security.......................................... 3
Board of Directors....................................... 3
Board Resolution......................................... 3
Business Day............................................. 3
Capitalized Lease........................................ 3
Cedel S.A................................................ 3
Commission............................................... 3
Common Depositary........................................ 3
Company ................................................ 4
Company Request or Company Order......................... 4
Corporate Trust Office................................... 4
corporation................................................4
coupon ................................................ 4
Default ................................................ 4
Default Amount........................................... 4
Defaulted Interest....................................... 4
Dollar or $.............................................. 4
Euro-clear............................................... 4
Euro Security............................................ 4
Event of Default......................................... 4
Exchange Act............................................. 4
Exchange Date............................................ 5
Exchange Rate Agent...................................... 5
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Guarantee................................................ 5
Guarantor................................................ 5
Guarantor Obligations.................................... 5
Guarantor Request or Guarantor Order..................... 5
Holder ................................................ 5
Indebtedness............................................. 5
Indenture................................................ 6
Indexed Security......................................... 6
interest ................................................ 6
Interest Payment Date.................................... 6
Lien ................................................ 6
Maturity ................................................ 6
Notice of Default........................................ 6
Officer ................................................ 6
Officer's Certificate.................................... 7
Opinion of Counsel....................................... 7
Original Issue Discount Security......................... 7
Outstanding.............................................. 7
Paying Agent............................................. 8
Periodic Offering........................................ 8
Person ................................................ 8
Place of Payment......................................... 9
possessions.............................................. 9
Predecessor Security..................................... 9
Principal Property....................................... 9
Redemption Date.......................................... 9
Redemption Price......................................... 9
Registered Security...................................... 9
Regular Record Date...................................... 9
Repayment Date........................................... 9
Repayment Price.......................................... 9
Responsible Officer...................................... 10
Restricted Subsidiary.................................... 10
Securities............................................... 10
Security Register and Security Registrar................. 10
Special Record Date...................................... 10
Specified Currency........................................10
Stated Maturity.......................................... 10
Subsidiary............................................... 10
Trust Indenture Act or TIA............................... 11
ii
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Trustee ................................................ 11
United States.............................................11
United States Person..................................... 11
U.S. Depositary.......................................... 11
U.S. Government Obligations.............................. 11
Vice President........................................... 12
Voting Stock............................................. 12
Yield to Maturity........................................ 12
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, Company or Guarantor..... 15
SECTION 106. Notice to Holders of Securities; Waiver............. 16
SECTION 107. Language of Notices, Etc............................ 17
SECTION 108. Trust Indenture Act................................. 17
SECTION 109. Effect of Headings and Table of Contents............ 17
SECTION 110. Successors and Assigns.............................. 18
SECTION 111. Separability Clause................................. 18
SECTION 112. Benefits of Indenture............................... 18
SECTION 113. Governing Law....................................... 18
SECTION 114. Legal Holidays...................................... 18
SECTION 115. Submission to Jurisdiction; Appointment
of Agent for Service................................ 19
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..................................... 19
SECTION 202. Form of Trustee's Certificate of Authentication..... 20
SECTION 203. Securities in Global Form........................... 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................ 22
SECTION 302. Denominations....................................... 26
SECTION 303. Execution, Authentication, Delivery and Dating...... 26
SECTION 304. Temporary Securities................................ 29
SECTION 305. Registration, Registration of Transfer and
Exchange............................................ 32
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SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities and Coupons.............................. 36
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset............................. 37
SECTION 308. Optional Extension of Stated Maturity............... 40
SECTION 309. Persons Deemed Owners............................... 41
SECTION 310. Cancellation........................................ 42
SECTION 311. Computation of Interest............................. 42
SECTION 312. Judgments........................................... 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............. 43
SECTION 402. Application of Trust Money.......................... 45
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................... 45
SECTION 502. Acceleration of Maturity; Rescission and Annulment.. 47
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.............................. 49
SECTION 504. Trustee May File Proofs of Claim.................... 50
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities....................................... 51
SECTION 506. Application of Money Collected...................... 51
SECTION 507. Limitation on Suits................................. 51
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest..................... 52
SECTION 509. Restoration of Rights and Remedies.................. 52
SECTION 510. Rights and Remedies Cumulative...................... 53
SECTION 511. Delay or Omission Not Waiver........................ 53
SECTION 512. Control by Holders.................................. 53
SECTION 513. Waiver of Past Defaults............................. 54
SECTION 514. Waiver of Stay or Extension Laws.................... 54
ARTICLE SIX
THE TRUSTEE
iv
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SECTION 601. Notice of Defaults.................................. 54
SECTION 602. Certain Rights of Trustee........................... 55
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.......................................... 56
SECTION 604. May Hold Securities................................. 56
SECTION 605. Money Held in Trust................................. 57
SECTION 606. Compensation, Reimbursement and Indemnification
of Trustee.......................................... 57
SECTION 607. Corporate Trustee Required; Eligibility............. 58
SECTION 608. Resignation and Removal; Appointment of Successor... 58
SECTION 609. Acceptance of Appointment by Successor.............. 60
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business......................................... 61
SECTION 611. Appointment of Authenticating Agent................. 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders........ 64
SECTION 702. Reports by Trustee.................................. 64
SECTION 703. Reports by Company and the Guarantor................ 64
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders............................................. 65
SECTION 902. Supplemental Indentures with Consent of Holders..... 66
SECTION 903. Execution of Supplemental Indentures................ 68
SECTION 904. Effect of Supplemental Indentures................... 68
SECTION 905. Conformity with Trust Indenture Act................. 68
SECTION 906. Reference in Securities to Supplemental Indentures.. 69
ARTICLE TEN
COVENANTS
v
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SECTION 1001. Payment of Principal, Premium, if Any,
and Interest....................................... 69
SECTION 1002. Maintenance of Office or Agency.................... 69
SECTION 1003. Money for Security Payments to Be Held in Trust.... 71
SECTION 1004. Corporate Existence................................ 73
SECTION 1005. Maintenance of Principal Properties................ 73
SECTION 1006. Payment of Taxes and Other Claims.................. 73
SECTION 1007. Additional Amounts................................. 74
SECTION 1008. Compliance Certificate............................. 75
SECTION 1009. Waiver of Certain Covenants........................ 75
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................... 76
SECTION 1102. Election to Redeem; Notice to Trustee.............. 76
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed........................................... 76
SECTION 1104. Notice of Redemption............................... 77
SECTION 1105. Deposit of Redemption Price........................ 78
SECTION 1106. Securities Payable on Redemption Date.............. 78
SECTION 1107. Securities Redeemed in Part........................ 79
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................... 80
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities......................................... 80
SECTION 1203. Redemption of Securities for Sinking Fund.......... 81
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees......................................... 81
SECTION 1302. Execution and Delivery of Guarantees............... 83
SECTION 1303. Limitation of Guarantor's Liability................ 83
ARTICLE FOURTEEN
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REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article........................... 84
SECTION 1402. Repayment of Securities............................ 84
SECTION 1403. Exercise of Option................................. 84
SECTION 1404. When Securities Presented for Repayment
Become Due and Payable............................. 85
SECTION 1405. Securities Repaid in Part.......................... 86
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
Defeasance......................................... 86
SECTION 1502. Defeasance and Discharge........................... 87
SECTION 1503. Covenant Defeasance................................ 87
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.... 88
SECTION 1505. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions......................................... 90
SECTION 1506. Reinstatement...................................... 91
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.......... 91
SECTION 1602. Call, Notice and Place of Meetings................. 91
SECTION 1603. Persons Entitled to Vote at Meetings............... 92
SECTION 1604. Quorum; Action..................................... 92
SECTION 1605. Determination of Voting Rights; Conduct
and Adjournment of Meetings........................ 94
SECTION 1606. Counting Votes and Recording Action of Meetings.... 95
TESTIMONIUM.................................................................96
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SIGNATURES....................................................................96
Exhibit A Forms of Certification..............................A-1-1
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..................A-1-1
Exhibit A-2 Form of certificate to be given by Euroclear and
Cedel S.A...........................................A-2-1
viii
INDENTURE, dated as of May 15, 1995, among Viacom Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036, Viacom International Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Guarantor"), having its principal office at 1515 Broadway, New York, New York
10036, and The First National Bank of Boston, a national banking association
duly organized and existing under the laws of the United States of America,
trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
RECITAL OF THE GUARANTOR
The Guarantor desires with respect to the Securities of
certain series issued hereunder to make the Guarantees provided for herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of 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 Trust
Indenture Act, 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 Trust Indenture Act;
(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 are defined in
that Article.
"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.
2
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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 the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made 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", when used with reference to the Company
or the Guarantor, means either the board of directors, or any duly authorized
committee of that board, of the Company or the Guarantor, as the case may be.
"Board Resolution", when used with reference to the Company or
the Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, 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 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.
3
"Cedel S.A." means Centrale de Livraison de Valeurs
Mobilieres, S.A., 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 the 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 any supplemental indenture or Officer's
Certificate, 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.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at 150 Royall Street, Mail Stop 45-02-15, Canton, Massachusetts 02021, except
that with respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of the
Trustee at which, at any particular time, its corporate agency business shall be
conducted.
"corporation" means a corporation, association, company,
joint-stock company, limited liability company, or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"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.
"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.
4
"Euro-clear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as the operator of the Euro-clear System.
"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 Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantees set forth in Section 1301.
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of any supplemental indenture or
Officer's Certificate, and thereafter "Guarantor" shall mean such successor
Person.
"Guarantor Obligations" shall have the meaning provided in
Section 1301.
"Guarantor Request" or "Guarantor Order" means a written
request or order signed in the name of the Guarantor by one Officer of the
Guarantor, and delivered to the Trustee.
"Holder", when used with respect to any Security, 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.
"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
5
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. When
used with respect to the Company, the term "Indebtedness" also includes any
obligation of the Guarantor specified in clauses (i) through (v) above to the
extent that said Indebtedness is guaranteed by the Company.
"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
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.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"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 at the rate prescribed in such Original Issue
Discount Security.
"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.
6
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder or otherwise.
"Notice of Default" shall have the meaning provided in Section
501.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Secretary or the
Controller of the Company or the Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any
Officer of the Company or the Guarantor, as the case may be, 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 General Counsel for the Company or the Guarantor, as the case may be, and
who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 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 or the Guarantor) in trust or set
aside and segregated in trust by the Company or the Guarantor (if the
Company or the Guarantor, as the case may be, shall act as a 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;
7
(iii) to the extent provided in Article Fifteen, (x)
Securities with respect to which the Company has effected defeasance
pursuant to Section 1502 and (y) solely for the limited purpose set
forth in Section 1503, Securities with respect to which the Company has
effected covenant defeasance pursuant to such Section 1503; 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 Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount of
an Original Issue Discount Security that shall be deemed to be Outstanding shall
be the amount of the 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 or
currency unit shall be the U.S. dollar equivalent, determined as of the date of
original issuance of such Security in accordance with Section 301 hereof, of the
principal amount of such Security (or, in the case of an Original Issue Discount
Security denominated in a foreign currency or currency unit, the U.S. dollar
equivalent, determined as of the date of original issuance of such Security, of
the amount determined as provided in (i) above), (iii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 301,
and (iv) Securities beneficially owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so beneficially owned shall be so disregarded. Securities so
beneficially 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 such other obligor.
8
"Paying Agent" means any Person (including the Company or the
Guarantor acting as Paying Agent) authorized by the Company to pay the principal
of (premium, if any, on) and interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of 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, 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, on) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"possessions" of the United States include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands.
"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, the
Guarantor or any wholly owned Subsidiary of the Company and located in the
United States, the aggregate book value of which on the date of determination
exceeds $500 million, other than any such real property and related fixtures or
improvements, which, as determined in good faith by the Board of Directors of
the Company, 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.
"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" has the meaning specified in Section 1402.
"Repayment Price" has the meaning specified in Section 1402.
"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.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any 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, 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.
10
"Specified Currency" has the meaning specified in Section 312.
"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
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 amended, 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, an 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 and any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"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
11
clearing agency registered under the Exchange Act, and if at 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.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by, and acting as an agency or instrumentality of, the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, 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 (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such 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 such custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company, the
Guarantor 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 or the Guarantor 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 or the Guarantor, as
the case may be, shall furnish to the Trustee an Officer's Certificate
12
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 covenant or condition;
(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 person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, 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 with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the
13
Company or the Guarantor, as the case may be, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
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 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 Sixteen, 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 or the
Guarantor or to all of them. 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 proxy, 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 1606.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
14
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, 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, the Company and the Guarantor 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 principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company or the Guarantor, as the case
may be, may, at its option, by or pursuant to 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 or the Guarantor, as the case may be, 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
15
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, the Company or the Guarantor in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee, Company or Guarantor.
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 or the
Guarantor 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,
Attention: Corporate Trust Administration; or
(2) the Company or the Guarantor 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 or the Guarantor, as the
case may be, 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 or the Guarantor, as the case may be.
SECTION 106. Notice to Holders of Securities; 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 to Holders of Registered Securities of any event
by the Company, the Guarantor or the Trustee:
(1) such notice shall be sufficiently given to Holders of
Registered Securities (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at the address of such Holder as it appears in
the Security Register, not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice;
and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities 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 at least twice, the first such
publication to be not earlier than the earliest date, and the second
such publication to be not later than the latest date, prescribed for
the giving of such notice.
16
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then any manner of giving such notice
as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice for every purpose hereunder; provided that this paragraph
shall not apply to any notice required by the Trust Indenture Act to be
transmitted by mail. 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 of a Registered
Security 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.
Any notice mailed to a Holder of Registered Securities 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. Any
notice to Holders of Bearer Securities shall be deemed to have been given on the
date of the first such publication referred to in (2) above.
In case 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 any notice to Holders
of Registered Securities given as provided herein.
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 of Securities 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. Language of Notices, Etc.
Any request, demand, authorization, direction, notice,
consent, proxy 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.
17
SECTION 108. Trust Indenture Act.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
or the Guarantor shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities,
the Guarantees or the coupons 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, the Guarantees
or the coupons, express or implied, shall give to any Person, other than the
parties hereto, any Authenticating Agent, any Paying Agent, any Security
Registrar and their successors hereunder and the Holders of Securities, the
Guarantees or coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 113. Governing Law.
This Indenture, the Securities, the coupons and, if issued,
the Guarantees shall be governed by and construed in accordance with the laws of
the State of New York.
18
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of 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 interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption 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, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
SECTION 115. Submission to Jurisdiction; Appointment of Agent
for Service.
The Company and, if any Guarantees are issued, the Guarantor
each hereby irrevocably submit to the non-exclusive jurisdiction of any New York
state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture, the Securities of any
series or, with respect to the Guarantor, the Guarantees, and the Company and
the Guarantor hereby irrevocably agree 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 and the Guarantor hereby irrevocably waive, to the fullest
extent they may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Company and the Guarantor agree
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
So long as any Securities remain Outstanding, the Company, and
so long as any Guarantees remain Outstanding, the Guarantor, will at all times
have its principal executive office in the Borough of Manhattan, The City of New
York, or an authorized agent in the Borough of Manhattan, The City of New York,
where or upon whom process may be served in any legal action or proceeding
arising out of or relating to the Indenture, the Securities of any series or,
with respect to the Guarantor, the Guarantees. Service of process upon such
agent and written notice of such service mailed or delivered to the Company or
the Guarantor shall to the extent permitted by law be deemed in every respect
effective service of process upon the Company or the Guarantor, as the case may
be, in any such legal action or proceeding.
19
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
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, the permanent global Securities of each
series, if any, and the Guarantees, if any, to be endorsed thereon shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution of the Company or, with respect to the Guarantees, the Guarantor, as
the case may be, or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or applicable tax law or as may, consistently herewith, be determined by the
officers executing such Securities, including the Guarantees, if any, to be
endorsed thereon, or coupons, as evidenced by their execution of the Securities.
If the forms of Securities, including the Guarantees, if any, to be endorsed
thereon, or coupons of any series are established by action taken pursuant to a
Board Resolution of the Company or the Guarantor, as the case may be, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities, including the Guarantees, if any,
to be endorsed thereon, and coupons, if any, shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, Guarantees or coupons,
as evidenced by their execution of such Securities, Guarantees or coupons.
20
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
BOSTON, as Trustee
By
-------------------------
Authorized Signatory
SECTION 203. Securities 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 Section 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 Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 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
21
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest 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 Guarantor (if Guarantees
are issued), the Trustee and any agent of the Company, the Guarantor (if
Guarantees are issued) 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, Euro-clear or Cedel S.A.
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
may be issued in one or more series.
There shall be established in or pursuant to one or more Board
Resolutions of the Company or pursuant to authority granted by one or more Board
Resolutions of the Company and, subject to Section 303, set forth in, 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:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the 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 1405 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
22
(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 is 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 such date or dates shall be
determined, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date, if any, for 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 interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
Canton, Massachusetts, where the principal of (and premium, if any, on)
and any interest 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
and, if different than the location specified in Section 105, the place
or places where notices or demands to or upon the Company or, if
applicable, the Guarantor 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 and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, 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 provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
other terms and conditions upon which Securities of the series shall be
redeemed, 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 denominations in which any Registered Securities
of the series shall be issuable, and if other than the denomination 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;
23
(10) if other than the principal amount thereof, the portion,
or the manner of calculation of such portion, of the principal amount
of any Securities of the series that shall be payable upon 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;
(11) the currency or currencies, including currency units, in
which payment of the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series shall be payable if
other than the currency of the United States of America;
(12) whether the amount of payments of principal of (and
premium, if any, on) and interest, if any, on the Securities of the
series may be determined with reference to an index, and the manner in
which such amounts shall be determined;
(13) if the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a currency or
currencies, including currency units, other than that or those in which
the Securities are denominated or stated to be payable, the currency or
currencies in which payment of the principal of (and premium, if any,
on) and interest on Securities of such series as to which such election
is made shall be payable, and the period or periods within which and
the terms and conditions upon which such election may be made;
(14) the designation of the initial Exchange Rate Agent, if
any;
(15) any provisions in modification of, in addition to or in
lieu of the provisions of Article Fifteen that shall be applicable to
the Securities of the series, and the obligations, if any, under this
Indenture to which the provisions of Section 1503 shall apply;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any deletions from, modifications of, or additions to the
Events of Default or covenants of the Company or, if applicable, the
Guarantor 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;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions
24
applicable to the offer, sale or delivery of Bearer Securities, 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 in global form, the identity of any
initial depository therefor;
(19) 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;
(20) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than 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, 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;
(21) if Securities of the 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,
the form and/or terms of such certificates, documents or conditions;
(22) 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;
25
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities of
the series to any Holder who is not a 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);
(24) whether Securities of or within the series are to be
guaranteed by the Guarantor and any modification of the terms of the
Guarantees as set forth in Article 13 hereof; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture) including,
without limitation, the terms, if any, of any exchangeability or
prepayment provisions, the price or prices (expressed as a percentage
of the aggregate principal amount thereof) at which the Securities will
be issued and any modifications 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
and (subject to Section 303) set forth, or determined in the manner provided, 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 for
issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms or the manner of determining the terms of
the 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 parameters 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.
26
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301, with
respect to any series of Securities, any Registered Securities of a 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 any Bearer Securities of a series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in the 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 or the Vice
Chairman of the Board, 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 the manual or
facsimile signature of such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were 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 and (if
Securities of such series were specified as contemplated by Section 301 to be
guaranteed by the Guarantor) having endorsed thereon Guarantees duly executed by
the Guarantor, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such 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, however, that a Euro
Security (other than a Security in temporary global form) may be
27
delivered in connection with its original issuance only if the Person entitled
to physical delivery of such Euro Security (which, in the 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 Euro-clear or Cedel S.A.
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 the 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 the procedures acceptable to
the Trustee for the issuance of such Securities and determining terms of
particular Securities of such series such as interest rate, maturity date, date
of issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any
related coupons, or the form of any Guarantees endorsed thereon, have been
established in or pursuant to one or more Board Resolutions of the Company or
the Guarantor, as the case may be, as permitted by Sections 201 and 301, 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 Sections 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 such
Guarantees to be endorsed thereon 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 Guarantees
endorsed thereon and any coupons appertaining thereto, when
authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such
28
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company and the Guarantor, respectively, enforceable
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities, such Guarantees and any coupons.
Notwithstanding the provisions of Section 301 and of the two
preceding paragraphs, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraphs at
or prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
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 or as to the authorization by the Guarantor of any Guarantee
endorsed thereon, 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 Sections 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 of
original issuance of the first Security of such series to be issued except as
otherwise provided pursuant to Section 301 in connection with the Securities of
any series.
No Security, no Guarantee endorsed thereon and no coupon
appertaining thereto shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security, or
the 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 officer, 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. The delivery of any Security by the Trustee after
the authentication thereof hereunder shall
29
constitute due delivery of any Guarantee endorsed thereon on behalf of the
Guarantor. 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.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, and, if applicable, having endorsed thereon Guarantees duly executed
by the Guarantor substantially of the tenor of the definitive Guarantees, 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, Guarantees or
coupons may determine, as conclusively evidenced by their execution of such
Securities, Guarantees or coupons, as the case may be. In the case 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 the provisions of the following
paragraphs), 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 maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like aggregate
principal amount of definitive Securities of the same series and of like tenor
of authorized denominations, having, if applicable, endorsed thereon Guarantees
duly executed by the Guarantor; 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
30
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.
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 Euro-clear and Cedel S.A., 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 15
days before the date specified in, or determined pursuant to the terms of, any
such temporary global Security of a series (the "Exchange Date"), the Company
shall deliver to the Trustee definitive Securities of that series, in aggregate
principal amount equal to the principal amount of such temporary global Security
and, if applicable, having endorsed thereon Guarantees duly executed by the
Guarantor, executed by the Company. On or after the Exchange Date, such
temporary global Security shall be presented and 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 of such series 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 and, if applicable, having endorsed
thereon Guarantees duly executed by the Guarantor; provided, however, that,
unless otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global Security must be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear 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 Cedel S.A. 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). 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 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, and, if applicable, having endorsed
31
thereon Guarantees duly executed by the Guarantor, upon the receipt by
Euro-clear or Cedel S.A., as the case may be, after the Exchange Date of 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), signed by the account
holder and dated no earlier than 15 days prior to the date on which Euro-clear
or Cedel S.A., as the case may be, furnishes to the Common Depositary in
accordance with the preceding paragraph a certificate in the form set forth in
Exhibit A-2 to this Indenture (or such other form as may be established pursuant
to Section 301) that relates to the interest to be exchanged for definitive
Securities. Copies of the certificate in the form set forth in Exhibit A-1 to
this Indenture (or such other form as may be established pursuant to Section
301) shall be available from the offices of Euro-clear and Cedel S.A., 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 in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or Cedel S.A. 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 any Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euro-clear and
Cedel S.A. on such Interest Payment Date upon delivery by Euro-clear and Cedel
S.A. 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 form 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 the Persons for whom Euro-clear or Cedel S.A., as the case may be,
holds such temporary global Security on such Interest Payment Date and who have
each delivered to Euro-clear or Cedel S.A., 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 relevant Interest Payment Date occurring prior to the Exchange Date.
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 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 and, if applicable, having endorsed thereon Guarantees
duly executed by the Guarantor on the Exchange Date or the date of certification
if such date occurs after the
32
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest 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 Euro-clear and Cedel S.A. 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 in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at an office or agency to
be maintained by the Company in accordance with Section 1002 a register for each
series of Securities (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 the registration of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities 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.
Upon due surrender for registration of transfer of any
Registered Security of any series at the office or agency of the Company
maintained pursuant to Section 1002 for such purpose in a Place of Payment for
such 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
denomination and of a like aggregate principal amount and tenor, having, if
applicable, endorsed thereon Guarantees duly executed by the Guarantor.
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 denominations and of a like aggregate principal amount and tenor,
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, having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 301, Registered Securities, including Registered
Securities received in exchange for Bearer Securities, may not be exchanged for
Bearer Securities.
33
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth, or
determined in the manner provided, 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
appertaining thereto. 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, the Guarantor 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, having,
if applicable, endorsed thereon Guarantees duly executed by the Guarantor.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable pursuant to this Section only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for Securities of such series and of like tenor
34
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 interests
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 and, if applicable, having
endorsed thereon Guarantees duly executed by the Guarantor. 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 accordance with such
instructions, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and, if applicable, having endorsed
thereon Guarantees duly executed by the Guarantor 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 of that series and of like tenor for
redemption and ending on the relevant Redemption Date; 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 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
35
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 the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee 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 1405 not involving any
transfer.
In the event of any redemption in part, the Company shall not
be required (i) to issue, register the transfer of or exchange any Security of
any series during the period beginning at the opening of business 15 days before
the selection of Securities of like tenor and of the series of which such
Security is a part for redemption, and ending at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption; (ii) to register the transfer of or exchange
any Registered Security so selected for redemption, in whole or in part, except
the unredeemed portion of any Security being redeemed in part; (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 of 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.
36
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons.
If any mutilated Security or a Security with a mutilated
coupon appertaining thereto is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount, having,
if applicable, endorsed thereon Guarantees duly executed by the Guarantor,
bearing a number not contemporaneously outstanding, and with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company, the Guarantor (if
related Guarantees are issued) and 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, the Guarantor 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 of
like tenor and principal amount, having, if applicable, endorsed thereon
Guarantees duly executed by the Guarantor, bearing a number not
contemporaneously outstanding and 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.
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, pay such Security or coupon,
as the case may be; provided, however, that principal of and premium, if any,
and interest on Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States.
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 any Guarantees endorsed
thereon duly executed by the Guarantor, and with any coupons appertaining
thereto, 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 and, if applicable, the Guarantor, whether or not the
destroyed, lost or stolen Security and any coupons appertaining thereto, or the
destroyed, lost or stolen
37
coupon shall be at any time enforceable by anyone, and any such new Security,
and any coupons appertaining thereto, shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series, any Guarantees endorsed thereon 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) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that
each installment of interest 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 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 any U.S. Depositary, and/or to each of
Euro-clear and Cedel S.A. 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 Euro-clear and Cedel S.A. to
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and,
38
if applicable, interest thereon herein collectively called "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, and at the same time
the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at the
address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the 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).
(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
39
"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 Note. 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 Fourteen
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
40
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 Stated 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 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 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 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 Maturity thereof, the
Holder must follow the procedures set forth in Article Fourteen 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.
41
SECTION 309. Persons Deemed Owners.
Prior to the due presentment of a Registered Security for
registration of transfer, the Company, the Guarantor (if a Guarantee is endorsed
on such Registered Security), the Trustee and any agent of the Company, the
Guarantor (if a Guarantee is endorsed on such Registered Security) 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, on) and (subject to
Sections 305 and 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Guarantor (if a Guarantee is endorsed on such Registered Security), the
Trustee or any agent of the Company, the Guarantor (if a Guarantee is endorsed
on such Registered Security) 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 Guarantor (if a Guarantee is
endorsed on such Bearer Security), the Trustee and any agent of the Company, the
Guarantor (if a Guarantee is endorsed on such Bearer Security) 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, to the extent permitted by law,
none of the Company, the Guarantor (if a Guarantee is endorsed on such Bearer
Security), the Trustee or any agent of the Company, the Guarantor (if a
Guarantee is endorsed on such Bearer Security) or the Trustee shall be affected
by notice to the contrary.
None of the Company, the Guarantor, 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 temporary
or permanent global Security, nothing herein shall prevent the Company, the
Trustee or, if applicable, the Guarantor, or any agent of the Company, the
Trustee or, if applicable, the Guarantor 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 any temporary or
permanent global Security, as the case may be, 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.
42
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. All Registered
Securities and matured coupons so delivered shall be promptly cancelled by the
Trustee. All Bearer Securities and unmatured coupons so delivered shall be
promptly cancelled by the Trustee. The Company or the Guarantor may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company or the Guarantor, as the case may be,
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 or the Guarantor 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. All cancelled
Securities and coupons held by the Trustee shall be destroyed unless otherwise
directed by a Company Order.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Judgments.
If pursuant to Section 301, the provisions of this Section are
established as terms of a series of Securities, the following provisions shall
apply: (a) the obligation, if any, of the Company to pay the principal of (and
premium, if any, on) and interest on Securities of such series in the currency
or currency unit specified pursuant to Section 301 (the "Specified Currency")
shall be of the essence and the Company agrees that, to the extent permitted
under applicable law, judgments in respect of such Securities shall be given in
the Specified Currency; (b) the obligation of the Company to make payments in
the Specified Currency of the principal of (and premium, if any, on) and
interest on such Securities shall, notwithstanding any payment in any other
currency or currency unit (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Specified Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency or currency unit (after any
43
premium and cost of exchange) on the Business Day in the country of issue of the
Specified Currency or, in the case of a currency unit, in the international
banking community, immediately following the day on which such Holder receives
such payment; (c) if the amount in the Specified Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
ARTICLE 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
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for, any surviving rights of
tender for repayment at the option of the Holders and the obligation of the
Company and, if applicable, the Guarantor to pay any Additional Amounts as
contemplated by Section 1007) and the Trustee, 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 or the Guarantor,
as the case may be, and thereafter repaid to the Company or
the Guarantor, as the case may be, or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
44
(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 of Securities and coupons, an
amount sufficient to pay and discharge the entire indebtedness
on such Securities and coupons not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Securities and coupons 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 with respect to any series of Securities, the obligations of the
Company to the Trustee under Section 606 and to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant to
clause (1)(B) 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.
45
SECTION 402. Application of Trust Money.
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 or the Guarantor acting as a Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
of (and premium, if any, on) and interest on the Securities for whose payment
such money has been deposited with 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):
(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 331/3% 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
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(4) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company then has
outstanding Indebtedness in excess of $100,000,000 in the aggregate
and, if not already matured at its final maturity in accordance with
its terms, such Indebtedness shall have been accelerated and remains
unpaid; or
(5) the entry by a court having jurisdiction in the premises
of a money judgment in an amount in excess of $250,000,000 against the
Company which has become final and not subject to appeal, and the
continuance of any such judgment unstayed, in effect and unpaid for a
period of 90 days; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or, if
Guarantees are issued, the Guarantor 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 or, if Guarantees are issued, the Guarantor
a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or, if Guarantees are issued, the Guarantor
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or, if Guarantees are issued, the Guarantor or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the commencement by the Company or, if Guarantees are
issued, the Guarantor 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 or, if Guarantees are
issued, the Guarantor 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, if Guarantees are issued, the
Guarantor 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
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Company or, if Guarantees are issued, the Guarantor in furtherance of
any such action; or
(8) 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(6) or (7)) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 331/3% 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, if applicable, the Guarantor (and to the Trustee if given by
Holders) the unpaid principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed 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 Section 502, if an Event of Default
specified in Section 501(6) or (7) 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 and, if applicable, the Guarantor 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,
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(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.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities of any series because
an Event of Default specified in Section 501(4) shall have occurred and be
continuing, such declaration of acceleration shall be automatically annulled if
the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded any declaration of acceleration
in respect of such Indebtedness or waived any default thereunder permitting such
an acceleration, and written notice of such discharge, rescission or waiver, as
the case may be, shall have been given to the Trustee by the Company or the
Guarantor and by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 30 days after such declaration of acceleration in
respect of the Securities of that series and no other Event of Default has
occurred during such 30-day period which has not been cured or waived during
such period.
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 or 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 the Maturity
thereof,
then the Company will, upon demand of the Trustee, pay to it (such demand and
payment in the case of Euro Securities to occur only outside the United States),
for the benefit of the Holders of such Securities and any coupons appertaining
thereto, the whole amount then due
49
and payable on such Securities and coupons of that series for principal (and
premium, if any) and interest, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, the Guarantor (if any related Guarantees
are issued) or any other obligor upon such Securities of that series and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company, the Guarantor (if any related Guarantees are
issued) or any other obligor upon such Securities of that 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
that series and any coupons appertaining thereto 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, the Guarantor (if Guarantees
are issued) or any other obligor upon the Securities of a series or the property
of the Company, the Guarantor (if Guarantees are issued) or such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities of such 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 or, if applicable, the Guarantor for the payment
of 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 (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest owing and unpaid in respect of the Securities of such series
and to
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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 of the Securities
of such series and any coupons appertaining thereto 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 a Security or of a coupon to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to such Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 606.
Subject to 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 of a coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of
any such Holder thereof or to authorize the Trustee to vote in respect of the
claim of any such Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or any coupon 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, upon presentation of the Securities or
coupons, or both, as the case may be (such presentation, in the case of Euro
51
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
hereunder, including 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 for principal of (and premium, if any, on) and any
interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or of 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 331/3% 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;
52
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
Holders of Securities of the same series, 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 of 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 any coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 307) interest 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 Holder, 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, subject to any determination in such proceeding, the Company, the
Guarantor, the Trustee and the Holders of Securities and coupons shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 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.
53
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons 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 of Securities or coupons
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.
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 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 coupons
appertaining thereto 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,
on) or interest on any Security of such series or any related coupon,
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.
54
Upon any such waiver, such default shall cease to exist, and
any Event of Default with respect to Securities of such series arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 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, on) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided
further that, in the case of any Default or breach of the character specified in
Section 501(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
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SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(a) 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;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order or Guarantor Request or Guarantor Order, as the case
may be, or as otherwise expressly provided herein, and any resolution
of the Board of Directors of the Company or the Guarantor may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders 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;
(f) 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 shall in good
faith determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during
56
normal business hours to examine the books, records and premises of the
Company or, if any Guarantees are issued, the Guarantor, personally or
by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of 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
for the Trustee's certificates of authentication), including any Guarantees
endorsed thereon, and in any coupons, shall be taken as the statements of the
Company or the Guarantor, as the case may be, 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 Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Guarantor, 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 and the Guarantor with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
57
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 or the Guarantor, as the case may
be.
SECTION 606. Compensation, Reimbursement and Indemnification
of Trustee.
The Company agrees:
(a) to pay to the Trustee or any predecessor Trustee from time
to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee or 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; and
(c) to indemnify 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 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 such 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 (and premium, if any,
on) 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
58
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. 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 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Company
and, if applicable, the Guarantor. If the instrument of acceptance by a
successor Trustee required by Section 609 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by a Board Resolution 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 609 hereof are complied with in respect of such appointment (the Trustee
being removed hereby agreeing to execute the instrument contemplated by Section
609(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, the Company and, if applicable, the Guarantor.
(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 the
Guarantor or by any Holder of a Security who for at least six months
has been a bona fide Holder of a Security of the series as to which the
Trustee has a conflicting interest, or
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(2) the Trustee shall cease to be eligible under Section 607
hereof and shall fail to resign after written request therefor by the
Company, the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to the 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 (and, in the case of Section 608(d)(1) above, who is a Holder
of a Security of the series as to which the Trustee has a conflicting interest)
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 the
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities of that series and
accepted appointment in the manner required by Section 609, 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 the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in
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the manner provided for 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 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the Guarantor
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company, the Guarantor or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In the 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 Guarantor, if applicable, 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, the Guarantor or any successor Trustee, such retiring
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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 definitions of those terms in Section 101 which
contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
and, if applicable, the Guarantor 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 610. 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 shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities; and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such authentications shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the authentication
of the Trustee shall have; 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.
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SECTION 611. 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. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal or
state authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of such Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall 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
provided for in Section 106. Any successor Authenticating Agent upon
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acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
BOSTON, as Trustee
By
-----------------------------------------------
as Authenticating Agent
By
-----------------------------------------------
Authorized Signatory
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.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
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, the Guarantor and the Trustee that
none of the Company, the Guarantor or the Trustee or 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. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
May 15 occurring after the initial issuance of Securities hereunder, the Trustee
shall transmit by mail to the Holders of Securities of any series with respect
to which it acts as Trustee, in the manner and to the extent provided in TIA
Section 313(c), and to the Company and the Guarantor, a brief report dated as of
such May 15 which satisfies the requirements of TIA Section 313(a).
SECTION 703. Reports by Company and the Guarantor.
The Company and, so long as any Securities in respect of which
Guarantees have been issued are Outstanding, the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or
the Guarantor, as the case may be, 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 or the Guarantor, as the case
may be, may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company or the
Guarantor, as the case may be, is not required to file information,
documents or reports pursuant to either of such Sections, then the
Company or the Guarantor, as the case may be, shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of
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the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations; and
(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 and the Guarantor 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, within 30 days after the filing
thereof with the Trustee, to the Holders of Securities, 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 or the Guarantor, as
the case may be, pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to add to the covenants of the Company or the Guarantor
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 the
Guarantor; or
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(2) to add any additional Events of Default (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 being included
solely for the benefit of such series); or
(3) 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 premium, if any, on) 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
(4) 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
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons 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 the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company,
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when authorized by a Board Resolution, the Guarantor, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each such series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or the terms of any sinking
fund or analogous payment 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 contemplated by Section 1007 (except as permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security or Indexed 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 change the
coin or currency in which any Security or any premium or the 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
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Sections
513 and 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 609(b) and 901(7), or
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(4) reduce the terms and conditions of any obligations of the
Guarantor in respect of the due and punctual payment of the principal
thereof and premium, if any, and interest, if any, thereon, any
Additional Amounts payable under Section 1007 in respect thereof or any
sinking fund or analogous payments provided in respect 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.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and 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 coupons 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.
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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, the Company and, if applicable, the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, having,
if applicable, Guarantees endorsed thereon and executed by the Guarantor, 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, currency unit or units or
composite 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 First National Bank of Boston at
150 Royall Street, Mail Stop 45-02-15, Canton, Massachusetts 02021, Attention:
Corporate Trust Administration. 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
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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
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Agent in the Borough of Manhattan, The City of New York, or the office or agency
of the Company in Canton, Massachusetts, 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 Canton, Massachusetts, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in Canton, Massachusetts 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 or the Guarantor 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, currency unit or units or composite 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,
currency unit or units or composite 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
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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.
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 or
the Guarantor, 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 or the Guarantor) 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 and, if applicable, the Guarantor for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such money held in trust,
and all
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liability of the Company or the Guarantor 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 any supplemental indentures hereto or Officer's
Certificates creating any series, the Company and, so long as any Securities in
respect of which Guarantees have been issued are Outstanding, the Guarantor will
do or cause to be done all things necessary to preserve and keep in full force
and effect their respective corporate existence, rights (charter and statutory)
and franchises; provided, however, that neither the Company nor the Guarantor
shall 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, and that the loss thereof is not disadvantageous
in any material respect to the Holders of the Securities or any coupons
appertaining thereto.
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 the Guarantor or 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, and not
disadvantageous in any material respect to the Holders.
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
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the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Additional Amounts.
If Securities of a series provide for the payment of
additional amounts to any Holder who is not a 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 not 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. In the event that
the Trustee or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of principal (and premium, if any) or any interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising
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otherwise and (ii) make all payments of principal (and premium, if any) and
interest with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. 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 and, so long as any Securities in respect of
Guarantees have been issued are Outstanding, the Guarantor each shall deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company or
the Guarantor, as the case may be, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's or the Guarantor's, as the case may
be, compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1008(a), such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
(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 and
the Guarantor 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 Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
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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 not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, provided 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 of Registered Securities of such
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 established
pursuant to Section 301.
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The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106 to
the Holders of Securities to be redeemed not less than 30 nor more than 60 days
prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of a partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with 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 will cease to accrue on and after said date,
(5) the place or places (which must include the applicable
Place or Places of Payment and which in the case of Bearer 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,
(6) that the redemption is for a sinking fund, if such is the
case,
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(7) 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 Guarantor, if applicable, the Trustee and any Paying
Agent is furnished, and
(8) 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 such Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made.
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.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
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 Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
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 or currencies,
currency unit or units or composite 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) (together with accrued interest,
if any, to the Redemption Date), and from and after such date (unless the
Company and the Guarantor shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so
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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, the Guarantor 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 principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company, the
Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor 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
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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 with, if applicable, Guarantees endorsed thereon
duly executed by the Guarantor. 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.
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 Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 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, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of such series (other than any previously called for redemption or
presented for repayment at the option of the Holder) theretofore purchased or
otherwise acquired by the Company, together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) receive
credit for the principal amount of previously Outstanding Securities of such
series which have been previously purchased or otherwise acquired by the Company
and delivered to the Trustee by the Company or for Outstanding Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
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
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pursuant to the terms of such Securities as provided for by the terms of such
series; provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such 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 any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash, in the currency or
currencies, currency unit or units or composite 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) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate), the basis for such credit and
that such Securities have not been previously so credited, and whether the
Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. 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
GUARANTEES
SECTION 1301. Guarantees.
If Securities of or within a series are specified, as
contemplated by Section 301, to be guaranteed by the Guarantor, then the
Guarantor hereby fully and unconditionally guarantees to each Holder of any such
Security which is authenticated and delivered by the Trustee and to each Holder
of any coupon appertaining to any such Security, and to the Trustee on behalf of
each such Holder, the due and punctual payment of the principal of (and premium,
if any, on) and interest (including, in case of default, interest on principal
and, to the extent permitted by applicable law, on overdue interest and
including any additional interest required to be paid according to the terms of
any such Security or any coupon appertaining
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thereto), if any, on each such Security, and the due and punctual payment of any
sinking fund payment (or analogous obligation), if any, provided for with
respect to any such Security, when and as the same shall become due and payable,
whether at Stated Maturity, upon redemption, upon acceleration, upon tender for
repayment at the option of any Holder or otherwise, according to the terms
thereof and of this Indenture, including, without limitation, the payment of any
Additional Amounts, if any, provided for with respect to any such Security as
described under Section 1007 hereof (the "Guarantor Obligations"). In case of
the failure of the Company or any successor thereto punctually to pay any such
principal, premium, interest or sinking fund payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at Stated Maturity, upon redemption, upon
declaration of acceleration, upon tender for repayment at the option of any
Holder or otherwise, as if such payment were made by the Company.
The Guarantor hereby agrees that its Guarantor Obligations
hereunder shall be as if it were principal debtor and not merely surety and
shall be absolute and unconditional, irrespective of the identity of the
Company, the validity, regularity or enforceability of any such Security or
coupon appertaining thereto or this Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of any such Security or
coupon appertaining thereto with respect to any provisions thereof, the recovery
of any judgment against the Company or any action to enforce the same, or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that its Guarantees will not be discharged except by complete performance of its
obligations contained in any such Security or coupon appertaining thereto and in
this Guarantee.
If the Trustee or the Holder of any Security or any coupon
appertaining thereto is required by any court or otherwise to return to the
Company or the Guarantor, or any custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official acting in relation to the
Company or the Guarantor, any amount paid to the Trustee or such Holder in
respect of a Security or any coupons appertaining thereto, the Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
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The Guarantor shall be subrogated to all rights of the Holders
of the Securities of a series (and of any coupons appertaining thereto) against
the Company in respect of any amounts paid by the Guarantor on account of such
Securities or any coupons appertaining thereto or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any, on) and interest, if any, on all Securities
of such series shall have been indefeasibly paid in full.
SECTION 1302. Execution and Delivery of Guarantees.
To evidence its Guarantees with respect to Securities of or
within any series that are specified, as contemplated by Section 301, to be
guaranteed by the Guarantor, the Guarantor hereby agrees to execute the
Guarantees, in a form established pursuant to Section 201, to be endorsed on
each Security of such series authenticated and delivered by the Trustee. Each
such Guarantee shall be executed on behalf of the Guarantor by its Chairman of
the Board, or its Vice Chairman of the Board, 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 Guarantees may be
manual or facsimile.
Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or did not hold such offices at the date
of such Securities.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guarantees set forth in this Article shall remain in full force
and effect notwithstanding any failure to endorse on each Security a notation of
such Guarantee.
SECTION 1303. Limitation of Guarantor's Liability.
The Guarantor, and by its acceptance of a Security each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any Guarantor Obligations under the Guarantees constitute or result
in a fraudulent transfer or conveyance for purposes of, or result in a violation
of, any United States federal, or applicable United States state, fraudulent
transfer or conveyance or similar law. To effectuate the foregoing intention, in
the event that the Guarantor Obligations, if any, in respect of the Securities
of any series would, but for this sentence, constitute or result in such a
fraudulent transfer or conveyance or
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violation, then the liability of the Guarantor under its Guarantees in respect
of the Securities of such series shall be reduced to the extent necessary to
eliminate such fraudulent transfer or conveyance or violation under the
applicable fraudulent transfer or conveyance or similar law.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of the Holders thereof shall be made in accordance with
the terms of such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1402. 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 a price (the "Repayment Price") equal to
the principal amount thereof, together with interest, if any, thereon accrued to
the repayment date specified in or pursuant to the terms of such Securities (the
"Repayment Date"). 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 or the
Guarantor is acting as a Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in the currency or currencies, currency unit
or units or composite 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 (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) 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 1403. 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
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Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount 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 the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of 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 1404. 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 and,
if applicable, the Guarantor 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 principal amount 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 as contemplated by 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 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 1402 an amount equal to
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the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company, the Guarantor, if applicable,
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 the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1405. 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, with, if applicable, Guarantees endorsed thereon duly executed by the
Guarantor. 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 FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. 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 1502 or (b)
covenant defeasance of the Securities of a series under Section 1503, then the
provisions of such Section 1502 or Section 1503, as the case may be, together
with Sections 1504, 1505 and 1506, shall be applicable to the Securities
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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 1502 (if applicable) or Section 1503 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Fifteen.
SECTION 1502. 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 1505 and 1506, the Company and the Guarantor shall be deemed to have
been discharged from their respective 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 and the
Guarantor 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 1505 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 1504 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 and, to the extent applicable, the Guarantor'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 Fifteen. Subject to
compliance with this Article Fifteen, the Company may exercise its option under
this Section 1502 notwithstanding the prior exercise of its option under Section
1503 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 1503. 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
and the Guarantor shall each be released from their respective obligations under
any Section(s) of this Indenture applicable to
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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 and the Guarantor
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 1503.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as
specifically noted below, subsequent, to application of either Section 1502 or
Section 1503 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 Fifteen 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) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than 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
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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 (6) and
(7) 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 1502, 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
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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 1503, 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 1502 or the covenant
defeasance under Section 1503 (as the case may be) have been complied
with.
SECTION 1505. 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 U.S. 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 1505, the "Trustee") pursuant to Section 1504 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 or the Guarantor
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 U.S.
Government Obligations deposited pursuant to Section 1504 or the principal and
interest received in respect thereof.
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Anything in this Article Fifteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1504
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 1506. Reinstatement.
Anything herein to the contrary notwithstanding, if and to the
extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (i) cannot be applied by the Trustee or any Paying Agent in
accordance with Section 1505 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 and the Guarantor's obligations, 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
1503, the Company's and the Guarantor's obligations, 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 U.S. Government Obligations
(and proceeds thereof) shall be reinstated to the extent the Company's payment
obligations are reinstated.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. 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.
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SECTION 1602. 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 1601, 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 1601, 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 1603. 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, any representatives of the
Company and its counsel and any representatives of the Guarantor and its
counsel.
SECTION 1604. 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
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holding or representing 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 1602(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 an
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 proviso to the first paragraph of 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 1604,
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
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(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 1605. 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 1602(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 of Securities of any series
each Holder of a Security of such series or proxy shall be entitled to one vote
for each $1,000 principal amount of Outstanding Securities of such series held
or represented by him (determined as specified in the definition of
"Outstanding" in Section 101); 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 1602 at which a quorum is present may be adjourned
from time to time by Persons
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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 1606. 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 facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. 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.
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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: /s/ Vaughn A. Clarke
---------------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
Attest:
By: /s/ Lawrence Rubin
----------------------------
Name: Lawrence Rubin
Title: Assistant Treasurer
VIACOM INTERNATIONAL INC.,
as Guarantor
By: /s/ Vaughn A. Clarke
---------------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
Attest:
By: /s/ Lawrence Rubin
----------------------------
Name: Lawrence Rubin
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF
BOSTON,
as Trustee
By: /s/ James E. Schultz
---------------------------------------
Name: James E. Schultz
Title: Account Manager
Attest:
By: /s/ Emily Grier Lea
----------------------------
Name: Emily Grier Lea
Title: Account Manager
97
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 persons(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.
A-1-2
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.
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:
[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 CEDEL S.A. 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.
A-2-2
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:
[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]
[Cedel S.A.]
By
----------------------------
Exhibit 4.2
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
-----------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 24, 1995
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
-----------------------------------------------
Senior Debt Securities
FIRST SUPPLEMENTAL INDENTURE, dated as of May 24, 1995, among
VIACOM INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL INC.,
a Delaware corporation (the "Guarantor"), and THE FIRST NATIONAL BANK OF BOSTON,
a national banking association (the "Trustee"), as Trustee under the Indenture
(the "Indenture"), dated as of May 15, 1995, among the Company, the Guarantor
and the Trustee.
RECITALS OF THE COMPANY
WHEREAS, Section 901(1) of the Indenture permits supplements
thereto without the consent of Holders of Securities to add to the covenants of
the Company for the benefit of all or any series of Securities;
WHEREAS, Section 901(4) of the Indenture permits supplements
thereto without the consent of the Holders of Securities to change any
provisions of the Indenture where there are no Securities Outstanding which are
entitled to the benefit of such provision; and
WHEREAS, the Company wishes to add to the covenants of the
Company for the benefit of the Holders of all Securities and to make certain
changes to other provisions of the Indenture, unless otherwise specified as
contemplated by Section 301 of the Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
SECTION 1. For purposes of this First Supplemental Indenture, all terms used
herein, unless otherwise defined, shall have the meaning assigned to them in the
Indenture.
SECTION 2. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 101 of the
Indenture shall be amended by deleting the definitions of "Company", "Guarantor"
and "Principal Property" and replacing such definitions with the following
definitions:
"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.
"Guarantor" means the Person named as the "Guarantor" 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 "Guarantor" shall mean such successor Person.
"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 $500 million, other than any such real property and related
fixtures or improvements which, as determined in good faith by the
Board of Directors of the Company, is not of material importance to the
total business conducted by the Company and its Subsidiaries, taken as
a whole.
SECTION 3. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 101 of the
Indenture shall be amended by adding the following definitions, each in
alphabetical order:
"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.
"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 Restricted Subsidiary to such
Person; provided however, that "Sale and Leaseback Transaction" shall
not include such arrangements that were existing on the date hereof or
at the time any Person
2
owning a Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or consolidation).
SECTION 4. For the benefit of the Holders of the Company's 7.75% Senior Notes
due 2005 only, Section 307 shall be amended by deleting the first paragraph
thereof and replacing such paragraph in its entirety with the following:
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid, in immediately available
funds, 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 on any Registered Security
may at the Company's option be paid in immediately available funds by
transfer to an account maintained by the payee located in the United
States.
SECTION 5. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 501 shall be
amended by deleting subparagraph (5) and replacing such paragraph in its
entirety with the following:
(5) the entry by a court having jurisdiction in the premises
of a money judgment in an amount in excess of $100 million against the
Company which has become final and not subject to appeal, and the
continuance of any such judgment unstayed, in effect and unpaid for a
period of 60 days; or
SECTION 6. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Sections 501, 502 and
507 of the Indenture shall be amended by deleting the reference to "331/3%" in
each of those sections and replacing such references with "25%".
SECTION 7. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 504 of the
Indenture shall be amended by deleting the last paragraph thereof and replacing
such paragraph in its entirety with the following:
Subject to Article Eight and Section 902, 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
of a coupon any plan of
3
reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any such Holder thereof or to
authorize the Trustee to vote in respect of the claim of any such
Holder in any such proceeding.
SECTION 8. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Article Eight of the
Indenture shall be amended by adding the following covenant:
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantor May Consolidate, etc. Only on
Certain Terms.
Neither the Company nor the Guarantor may consolidate or merge
with or into another corporation, or sell or convey all or
substantially all of their respective 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 Person (if other than the Company or the
Guarantor, as the case may be) is a corporation organized under the
laws of the United States or any state thereof; (iii) the Person (if
other than the Company or the Guarantor, as the case may be) through a
supplemental indenture assumes payment of the principal of (premium, if
any, on) and interest on, the Outstanding Securities of the applicabale
series and the performance and observance of all the covenants and
conditions of the Indenture with respect to the Company or the
Guarantor, as the case may be; (iv) the Company or the Guarantor, as
the case may be, 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 and/or the Guarantor may consolidate or merge with or into, or
sell or convey all or substantially all of their respective property
and assets to, each other or any Subsidiary of either of them. For
purposes of this Section, "sell or convey all or substantially all of
their respective 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.
4
Section 802. Successor Person Substituted.
Upon any consolidation by the Company or the Guarantor with or
merger by the Company or Guarantor into any other corporation or any
sale or conveyance of all or substantially all of the property and
assets of the Company or the Guarantor to any Person in accordance with
Section 801, the successor Person formed by such consolidation or into
which the Company or the Guarantor 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 or the Guarantor, as the
case may be, under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor, as the
case may be, herein, and in the event of any such sale or conveyance,
the Company or the Guarantor, as the case may be (which terms shall for
this purpose mean the Person named as the "Company" or the "Guarantor"
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 or
the Guarantees, as the case may be, and may be dissolved or liquidated.
SECTION 9. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 901 of the
Indenture shall be amended by adding the following purpose as new subparagraph
(8) thereof and renumbering the existing subparagraph (8) as subparagraph (9):
(8) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor, as the case may be,
herein and in the Securities and the Guarantees in accordance with
Article Eight hereof; or
SECTION 10. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Section 902(1) of the
Indenture shall be amended by deleting the first parenthetical thereof and
replacing such parenthetical in its entirety with the following:
(except as contemplated by Section 801(1) and permitted by
Section 901(8))
SECTION 11. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Article Ten of the
Indenture shall be amended by deleting the clause "Subject to any supplemental
indentures hereto or Officer's Certificates
5
creating any series," in Section 1004 and replacing such clause in its entirety
with "Subject to Article Eight," and by adding the following covenants:
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 clause (c) of, but not otherwise
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 such sale or the Attributable Debt
with respect to such Sale and Leaseback
6
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.
SECTION 12. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, Sections 1502 and
1503 of the Indenture shall be applicable to all Securities. Section 1503 of the
Indenture shall apply to the covenants set forth in Sections 1004, 1005, 1006,
1010 and 1011 of the Indenture as they apply to the Securities of any series.
SECTION 13. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
FIRST SUPPLEMENTAL INDENTURE.
SECTION 14. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
7
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed and attested, all as of the day and
year first written above.
VIACOM INC.
By: /s/ Vaughn A. Clarke
---------------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ Lawrence Rubin
-----------------------------
Name: Lawrence Rubin
Title: Assistant Secretary
VIACOM INTERNATIONAL INC.
By: /s/ Vaughn A. Clarke
---------------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ Lawrence Rubin
-----------------------------
Name: Lawrence Rubin
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ James E. Schultz
---------------------------------------
Name: James E. Schultz
Title: Account Manager
ATTEST:
By: /s/ Emily Grier Lea
-----------------------------
Name: Emily Grier Lea
Title: Account Manager
8
Exhibit 4.3
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
STATE STREET BANK AND TRUST COMPANY,
Trustee
-----------------------------------------------
SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1
Dated as of December 15, 1995
Supplementing and Amending the Indenture
Dated as of May 15, 1995
as Supplemented by the First Supplemental Indenture
Dated as of May 24, 1995
-----------------------------------------------
Senior Debt Securities
SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1, dated as of
December 15, 1995, among VIACOM INC., a Delaware corporation (the "Company"),
VIACOM INTERNATIONAL INC., a Delaware corporation (the "Guarantor"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts banking corporation, as successor
to The First National Bank of Boston (the "Trustee"), as Trustee under the
Indenture, dated as of May 15, 1995, as supplemented by the First Supplemental
Indenture, dated as of May 24, 1995, among the Company, the Guarantor and the
Trustee (as so supplemented and amended, the "Indenture").
RECITALS OF THE COMPANY
WHEREAS, State Street Bank and Trust Company has succeeded The
First National Bank of Boston as Trustee pursuant to Section 610 of the
Indenture;
WHEREAS, Section 901(8) of the Indenture permits supplements
thereto without the consent of Holders of Securities to cure any ambiguity or to
make any other provisions with respect to matters or questions arising under the
Indenture;
WHEREAS, the Company wishes to make certain changes to
provisions of the Indenture.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE AND
AMENDMENT NO. 1 WITNESSETH:
SECTION 1. For purposes of this Second Supplemental Indenture and Amendment No.
1, all terms used herein, unless otherwise defined, shall have the meaning
assigned to them in the Indenture.
SECTION 2. For the benefit of the Holders of all Securities, Section 101 of the
Indenture shall be amended by adding the following definition, such definition
to be deemed inserted in Section 101 so as to preserve the alphabetical order of
all definitions in such Section 101, as supplemented hereby:
"7.75% Notes" means the 7.75% Senior Notes due June 1, 2005 of
the Company, issued pursuant to this Indenture.
SECTION 3. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, the definition of
"Sale and Leaseback Transaction" in Section 101 of the Indenture shall be
amended by adding the phrase", with respect to a particular series of
Securities (provided however, that the phrase `, with respect to a particular
series of Securities' shall not be included in the text of this definition as it
applies to the 7.75% Notes)," immediately after the word "not" in such
definition, and by adding the phrase "(in the case of the 7.75% Notes) and the
date of issuance of such series of Securities (in the case of Securities other
than the 7.75% Notes)" immediately after the word "hereof" in such definition.
SECTION 4. For the benefit of the Holders of all Securities, Section 307 shall
be amended by deleting the first paragraph thereof and replacing such paragraph
in its entirety with the following:
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid, in immediately available
funds, 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 on any Registered Security
may at the Company's option be paid in immediately available funds by
transfer to an account maintained by the payee located in the United
States.
SECTION 5. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, the last sentence of
Section 801 of the Indenture shall be amended by adding the phase "or the
Guarantor's, as the case may be," immediately after the first use of the word
"Company's" in such sentence and by adding the phrase "which, in the case of the
Company, shall be" immediately after the word "revenues" in the same sentence.
SECTION 6. For the benefit of the Holders of all Securities, unless otherwise
specified as contemplated by Section 301 of the Indenture, the second sentence
of Section 1010 of the Indenture shall be amended by adding the phrase ", with
respect to a particular series of Securities (provided however, that the phrase
`, with respect to a particular series of Securities' shall not be included in
the text of this Section 1010 as it applies to the 7.75% Notes)," immediately
after the word "not" in such sentence, and by adding the phrase "(in the case of
the 7.75% Notes) and the date of issuance of such series of Securities (in the
case of Securities other than the 7.75% Notes)" immediately after the word
"hereof" in the same sentence.
SECTION 7. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1.
SECTION 8. This Second Supplemental Indenture and Amendment No. 1 may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but such counterparts shall together constitute but
one and the same instrument.
2
IN WITNESS WHEREOF, the parties have caused this Second
Supplemental Indenture and Amendment No. 1 to be duly executed and attested, all
as of the day and year first written above.
ATTEST: VIACOM INC.
By: /s/ Lawrence Rubin By: /s/ Vaughn A. Clark
-------------------------- ---------------------------------------
Name: Lawrence Rubin Name: Vaughn A. Clark
Title: Assistant Secretary Title: Senior Vice President, Treasurer
ATTEST: VIACOM INTERNATIONAL INC.
By: /s/ Lawrence Rubin By: /s/ Vaughn A. Clark
-------------------------- ---------------------------------------
Name: Lawrence Rubin Name: Vaughn A. Clark
Title: Assistant Secretary Title: Senior Vice President, Treasurer
ATTEST: STATE STREET BANK AND TRUST COMPANY
By: /s/ James E. Schultz By: /s/ Roland S. Gustafsent
-------------------------- ---------------------------------------
Name: James E. Schultz Name: Roland S. Gustafsent
Title: Assistant Secretary Title: Assistant Vice President
3
Exhibit 4.4
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
VIACOM INTERNATIONAL SERVICES INC.,
AND
STATE STREET BANK AND TRUST COMPANY
Trustee
-----------------------------------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 22, 1996
to be effective as of July 31, 1996
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
-----------------------------------------------
Senior Debt Securities
THIRD SUPPLEMENTAL INDENTURE, dated as of July 22, 1996, to be
effective as of July 31, 1996, among VIACOM INC., a Delaware corporation (the
"Company"), VIACOM INTERNATIONAL INC., a Delaware corporation (the "Guarantor"),
VIACOM INTERNATIONAL SERVICES INC. (the "Successor"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as successor to The First National
Bank of Boston (the "Trustee"), as Trustee to the Indenture, dated as of May 15,
1995, among the Company, the Guarantor and the Trustee, as supplemented by the
First Supplemental Indenture, dated as of May 24, 1995, among the Company, the
Guarantor and the Trustee and as further supplemented and amended by the Second
Supplemental Indenture and Amendment No. 1, dated as of December 15, 1995, among
the Company, the Guarantor and the Trustee (as amended, the "Indenture").
RECITALS
WHEREAS, the Company, the Guarantor and the Trustee are
parties to the Indenture, pursuant to which the Company has issued $1 billion
principal amount of 7.75% Senior Notes due 2005, $350 million principal amount
of 6.75% Senior Notes due 2003 and $200 million principal amount of 7.625%
Senior Debentures due 2016 (the "Securities");
WHEREAS, pursuant to the Indenture the Guarantor has
unconditionally guaranteed the Securities (the "Guarantees");
WHEREAS, the Guarantor and the Successor are parties to an
Implementation Agreement dated as of July 24, 1995 (the "Implementation
Agreement") pursuant to which the Guarantor shall convey substantially all of
its assets to the Successor (the "Conveyance of Assets") and the Successor shall
assume substantially all of the liabilities of the Guarantor, including
liabilities in respect of the Securities (the "Assumption of Liabilities");
WHEREAS, the Guarantor and the Successor desire, pursuant to
Section 901 of the Indenture, to supplement and amend the Indenture, in order to
comply with Section 801 of the Indenture;
WHEREAS, the Successor is a corporation validly existing under
the laws of the State of Delaware;
WHEREAS, the Successor has duly authorized the execution and
delivery of this Third Supplemental Indenture to assume all the covenants and
conditions of the Guarantor under the Guarantees and the Indenture; and
WHEREAS, immediately after the consummation of the Conveyance
of Assets and Assumption of Liabilities in accordance with the Implementation
Agreement, no Event of Default or Default (as defined in the Indenture) shall
have occurred and be continuing.
NOW, THEREFORE, the Company, the Guarantor, the Successor and
the Trustee covenant and agree as follows:
ARTICLE A
SECTION A.1. The Successor hereby assumes all the covenants
and conditions of the Guarantor under the Guarantees and the Indenture; and the
Successor shall succeed to, and be substituted for, and may exercise every right
and power of, the Guarantor under the Indenture with the same effect as if the
Successor had been named as the Guarantor therein; and the Guarantor shall be
relieved of all covenants and conditions under the Guarantees and the Indenture.
ARTICLE B
MISCELLANEOUS PROVISIONS
SECTION B.1. Any notice or communication by the Trustee to the
Successor is duly given if in writing and delivered in person or mailed by
first-class mail to the address set forth below:
Viacom International Services Inc.
1515 Broadway
New York, NY 10036
Attention: Chief Financial Officer, with a copy to
the Office of the General Counsel
SECTION B.2. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THIS THIRD SUPPLEMENTAL INDENTURE.
SECTION B.3. This Third Supplemental Indenture may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
2
IN WITNESS WHEREOF, the parties have caused this Third
Supplemental Indenture to be duly executed as of the day and year first written
above.
VIACOM INC.
By: /s/ Michael D. Fricklas
---------------------------------------
Name: Michael D. Fricklas
Title: Deputy General Counsel
VIACOM INTERNATIONAL INC.
By: /s/ Michael D. Fricklas
---------------------------------------
Name: Michael D. Fricklas
Title: Deputy General Counsel
VIACOM INTERNATIONAL SERVICES INC.
By: /s/ Michael D. Fricklas
---------------------------------------
Name: Michael D. Fricklas
Title: Deputy General Counsel
STATE STREET BANK AND TRUST COMPANY
By: /s/ Eric J. Donaghey
---------------------------------------
Name: Eric J. Donaghey
Title: Assistant Vice President
3
Exhibit 4.10
Form of 2011 Exchange Note
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Company (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary by a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
Unless and until it is exchanged in whole or in part for
Securities in definitive registered form in accordance with the provisions of
the Indenture (as defined below) applicable to such exchange, this certificate
may not be transferred except as a whole by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to
a successor Depositary or a nominee of such successor Depositary.
VIACOM INC.
6.625% Senior Notes due 2011
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
$[ ]
CUSIP:
Viacom Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $[ ] on May 15, 2011 at the
office or agency of the Company referred to below, and to pay interest thereon
on November 15, 2001 and semi-annually thereafter, on May 15 and November 15 in
each year, from May 17, 2001, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, at the rate of 6.625% per
annum, until the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid, in immediately available funds, to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1, as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and such defaulted interest, may be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. Payment of the principal of and interest on this
Security will be made at the Corporate Trust Office of the Trustee or such other
office or agency of the Company as may be designated for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided however, that
each installment of interest and principal on this Security may at the Company's
option be paid in immediately available funds by transfer to an account
maintained by the payee located in the United States.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), unlimited in aggregate
principal amount, issued and to be issued in one or more series under an
indenture dated as of May 15, 1995 among the Company, Viacom International Inc.,
as guarantor (the "Guarantor") and Citibank, N.A., as successor to State Street
Bank and Trust Company and The First National Bank of Boston, trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by the
First Supplemental Indenture dated as of May 24, 1995 among the Company, the
Guarantor and the trustee party thereto, as supplemented and amended by the
Second Supplemental Indenture and Amendment No. 1 dated as of December 15, 1995
among the Company, the Guarantor and the trustee party thereto, as supplemented
by the Third Supplemental Indenture dated as of July 22, 1996, among the
Company, the Guarantor and the trustee party thereto, as supplemented by the
Fourth Supplemental Indenture dated as of August 1, 2000 among the Company, the
Guarantor and the Trustee, as further supplemented by the Fifth Supplemental
Indenture dated as of January 17, 2001 among the Company, the Guarantor and the
Trustee and as further supplemented by the Sixth Supplemental Indenture dated as
of May 17, 2001 among the Company, the Guarantor and the Trustee (as so
supplemented and amended, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of a series designated as 6.625% Senior Notes
due 2011, initially limited in aggregate principal amount to $1,000,000,000.
This Security is a global Security representing $[ ] of the Securities.
This Security is a "book-entry" Security and is being
registered in the name of Cede & Co. as nominee of The Depository Trust Company
("DTC"), a clearing agency. Subject to the terms of the Indenture, this Security
will be held by a clearing agency or its nominee, and beneficial interest will
be held by beneficial owners through the book-entry facilities of such clearing
agency or its nominee in minimum denominations of $1,000 and integral multiples
thereof. As long as this Security is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of and interest on this
Security by wire transfer of immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this Security will be made after
due notice by the Trustee of the pendency of such payment and only upon
presentation and surrender of this Security at its principal corporate trust
office or such other offices or agencies appointed by the Trustee for that
purpose and such other locations provided in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Securities of this series are not subject to any sinking
fund and are subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments
to, any laws (or any regulations or rulings promulgated thereunder) of the
United States (or any political subdivision or taxing authority thereof or
therein) or any change in, or amendments to, an official position regarding the
application of such laws, regulations or rulings, which change or amendment is
announced or becomes effective thereunder after May 10, 2001, the Company has
become or, based upon a written opinion of independent counsel selected by the
Company, will become obligated to pay, with respect to this series of
Securities, any Additional Amounts, the Company may redeem all, but not less
than all, the Securities of such series at any time at 100% of the principal
amount thereof, together with accrued interest thereon, if any, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive interest on
the relevant Interest Payment Date).
The Securities of this series will be redeemable at any time,
at the option of the Company, in whole or from time to time in part, upon not
less than 30 nor more than 60 days' prior notice, on any date prior to their
maturity at a Redemption Price equal to the sum of 100% of the principal amount
thereof and the Make-Whole Amount and any accrued and unpaid interest, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on the relevant Interest Payment Date).
In the case of any partial redemption, selection of the
Securities of this series for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities of this series are listed or, if the Securities
of this series are not listed on a national securities exchange, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate; provided that no Securities of this series of $1,000 in
principal amount or less shall be redeemed in part. If any Security is to be
redeemed in part only, the notice of redemption relating to such Security shall
state the portion of the principal amount thereof to be redeemed. A new Security
in principal amount equal to the unredeemed portion thereof will be issued in
the name of the Holder thereof upon cancellation of the original Security.
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, repurchase or conversion of this
Security in part only, the Trustee, as custodian of the Depositary, shall make
an adjustment on its records to reflect such deposit or withdrawal in accordance
with the rules and procedures of the Depositary.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than specified percentages in aggregate principal amount of the
Outstanding Securities of each series, on behalf of the Holders of all the
Securities of such series, to waive compliance by the Company and the Guarantor
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by or on behalf of
the Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security of this series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days; provided, however, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of or
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in New York, New York or at such other office or agency as the
Company may designate, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of a different authorized
denomination, as requested by the Holder surrendering the same.
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 payable in connection
therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor or the Trustee may treat the Person in whose name
this Security is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and none of the Company, the Guarantor,
the Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
If at any time, a Depositary is at any time unwilling or
unable to continue as Depositary and a successor Depositary is not appointed by
the Company within 90 days, then the Company will execute and the Trustee will
authenticate and deliver Securities in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of this Security in exchange for this Security. Such Securities in
definitive registered form shall be registered in such names and issued in such
authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of Citibank, N.A., the Trustee under the Indenture, or
its successor thereunder, by the manual signature of one of its authorized
officers, this Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: VIACOM INC., as Issuer
By:
-----------------------------
Attest:
- -----------------------------
Authorized Signature
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
----------------------------
Authorized Signatory
Dated:
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Guarantor", which term includes any successor corporation under the
Indenture referred to in the Security upon which this Guarantee is endorsed),
hereby fully and unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed the due and punctual payment of the principal
of and interest (including, in case of default, interest on principal and, to
the extent permitted by applicable law, on overdue interest), if any, on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon declaration of acceleration or otherwise,
according to the terms thereof and of the Indenture referred to therein. In case
of the failure of Viacom Inc. or any successor thereto (herein called the
"Company") punctually to pay any such principal or interest, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon redemption,
upon declaration of acceleration or otherwise, as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of the identity of the Company, the
validity, regularity or enforceability of this Security or said Indenture, the
absence of any action to enforce the same, any waiver or consent by the Holder
of this Security with respect to any provisions thereof, the recovery of any
judgment against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder
of this Security against the Company in respect of any amounts paid by the
Guarantor pursuant to the provisions of this Guarantee or the Indenture referred
to in this Security; provided, however, that the Guarantor shall not be entitled
to enforce or to receive any payment arising out of, or based upon, such right
of subrogation until the principal of and interest on all Securities of the
series of which the Security upon which this Guarantee is endorsed constitutes a
part shall have been indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee
would constitute or result in a fraudulent transfer or conveyance for purposes
of, or result in a violation of, any United States federal, or applicable United
States state, fraudulent transfer or conveyance or similar law, then the
liability of the Guarantor hereunder shall be reduced to the extent necessary to
eliminate such fraudulent transfer or conveyance or violation under the
applicable fraudulent transfer or conveyance or similar law.
If the Trustee or the Holder of the Security upon which this
Guarantee is endorsed is required by any court or otherwise to return to the
Company or the Guarantor, or any custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official acting in relation to the
Company or the Guarantor, any amount paid to the Trustee or such Holder in
respect of the Security upon which this Guarantee is endorsed, this Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantor further agrees, to the fullest extent that it may lawfully
do so, that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five of the Indenture for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of New York.
Subject to the next following paragraph, the Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Guarantor have
been done and performed and have happened in due compliance with all applicable
laws.
This Guarantee shall not be valid or become obligatory for any
purpose until the certificate of authentication on the Security upon which this
Guarantee is endorsed has been signed by the Trustee under the Indenture
referred to in this Security.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be signed by its Chairman of the Board, or its Vice Chairman of the Board, 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, manually or in facsimile.
Dated: VIACOM INTERNATIONAL INC.
By:
-----------------------------
Attest:
- -----------------------------
Authorized Signature
Exhibit 4.13
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of May 17, 2001
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
as Guarantor
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
SALOMON SMITH BARNEY INC.
as the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of May 17, 2001, by and among VIACOM INC., a Delaware
corporation (the "Company"), Viacom International Inc., a Delaware corporation
(the "Guarantor") and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and
SALOMON SMITH BARNEY INC., in their respective capacities as initial purchasers
and as representatives of each of the other initial purchasers named in Schedule
A hereto (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated May 10, 2001, by and among the Company, the Guarantor and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers and the guarantee by the Guarantor of
$400,000,000 aggregate principal amount of the Company's 6.40% senior notes due
2006 (the "2006 Senior Notes") and $1,000,000,000 aggregate principal amount of
the Company's 6.625% senior notes due 2011 (the "2011 Senior Notes", and
together with the 2006 Senior Notes, the "Senior Securities"; references to
Senior Securities, Exchange Senior Securities and Registrable Senior Securities
will be identically applicable to both the 2006 Senior Notes and the 2011 Senior
Notes unless otherwise indicated herein). In order to induce the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company has
agreed to provide to the Initial Purchasers and their respective direct and
indirect transferees and assigns the registration rights set forth in this
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, including any agent thereof;
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, in The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company
and the Guarantor of Exchange Senior Securities for Registrable Senior
Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 covering the Registrable
Senior Securities (or, if applicable, on another appropriate form), and
all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Senior Securities" shall mean the Senior Securities
issued by the Company under the Indenture, and their respective
guarantees by the Guarantor, containing terms identical to the Senior
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Senior Securities or, if no such
interest has been paid, from the Closing Time, (ii) the transfer
restrictions thereon shall be eliminated and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) to be offered to Holders of Registrable Senior Securities
in exchange for Registrable Senior Securities pursuant to the Exchange
Offer.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Senior Securities, and each of their
respective successors, assigns and direct and indirect transferees who
become registered owners of Registrable Senior Securities under the
Indenture.
"Indenture" shall mean the Indenture dated as of May 15, 1995,
as supplemented by the First Supplemental Indenture, dated as of May
24, 1995, as supplemented and amended by the Second Supplemental
Indenture and Amendment No. 1, dated as of December 15, 1995, as
supplemented by the Third Supplemental Indenture, dated as of July 22,
1996, as supplemented by the Fourth Supplemental Indenture, dated as of
August 1, 2000, as supplemented by the Fifth Supplemental Indenture,
dated January 17, 2001, and as further supplemented by the Sixth
Supplemental Indenture, dated May 17, 2001, among the Company, the
Guarantor and Citibank, N.A., a national banking association, as
successor in interest to State Street Bank and Trust Company and The
First National Bank of Boston, as Trustee, in each case relating to the
Senior Securities and the Exchange Senior Securities and as the same
may be amended and supplemented from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Senior Securities
outstanding; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Senior Securities is required
hereunder, Registrable Senior Securities held by the Company, the
2
Guarantor or any of their affiliates (as such term is defined in Rule
405 under the 1933 Act) (other than the Initial Purchasers or
subsequent holders of Registrable Senior Securities, if such subsequent
holders are deemed to be such affiliates solely by reason of their
holding of such Registrable Senior Securities, shall be disregarded in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f).
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Senior Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Senior Securities" shall mean the Senior
Securities; provided, however, that the Senior Securities shall cease
to be Registrable Senior Securities when (i) a Registration Statement
with respect to such Senior Securities shall have been declared
effective under the 1933 Act and such Senior Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Senior
Securities shall have been sold to the public pursuant to Rule 144 (or
any similar provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Senior Securities shall have ceased to be outstanding
or (iv) such Senior Securities have been exchanged for Exchange Senior
Securities upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the
Guarantor with this Agreement, including without limitation: (i) all
SEC, stock exchange or NASD registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or other securities or
blue sky qualification of any of the Exchange Senior Securities or
Registrable Senior Securities), (iii) all expenses of any Persons in
preparing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements, certificates representing the
Exchange Senior Securities and other documents
3
relating to the performance of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses incurred in
connection with the listing, if any, of any of the Exchange Senior
Securities or such Registrable Senior Securities, covered by a Shelf
Registration Statement, as applicable, on any securities exchange or
exchanges, (vi) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vii)
the fees and disbursements of counsel for the Company and the Guarantor
and the fees and expenses of the independent public accountants of the
Company and the Guarantor, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance
and compliance, (viii) the fees and expenses of a "qualified
independent underwriter" as defined by Conduct Rule 2720 of the NASD
(if required by the NASD rules) in connection with the offering of the
Registrable Senior Securities and the reasonable fees and expenses of
its counsel, (ix) the reasonable fees and expenses of the Trustee, any
registrar, any depositary and paying agent, including their respective
counsel, and any escrow agent or custodian, (x) the reasonable fees and
expenses of the Initial Purchasers in connection with the Exchange
Offer, including the reasonable fees and expenses of counsel to the
Initial Purchasers which shall be Hughes Hubbard & Reed LLP, (xi) the
reasonable fees and expenses of one counsel to the Holders which shall
be Hughes Hubbard & Reed LLP in connection with the Shelf Registration
Statement, and (xii) in the case of an underwritten offering, any
reasonable fees and disbursements of the underwriters customarily
required to be paid by issuers or sellers of such securities, including
the reasonable fees and expenses of counsel to the underwriters, and
the fees and expenses of any special experts retained by the Company
and the Guarantor in connection with any Registration Statement but
excluding (except as otherwise provided herein) fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions
and any transfer taxes, if any, relating to the sale or disposition of
Registrable Senior Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Company and the Guarantor relating to any offering of the
Exchange Senior Securities or Registrable Senior Securities pursuant to
the provisions of this Agreement, and all amendments and supplements to
any such Registration Statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantor pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the
Registrable Senior Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
4
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited
by any applicable law or applicable interpretation of the staff of the SEC, the
Company and the Guarantor shall (A) file with the SEC within 60 calendar days
after the Closing Time an Exchange Offer Registration Statement covering the
offer by the Company to the Holders to exchange all of the Registrable Senior
Securities for Exchange Senior Securities, (B) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be declared effective by
the SEC within 180 calendar days after the Closing Time, (C) use its reasonable
best efforts to cause such Registration Statement to remain effective until the
closing of the Exchange Offer and (D) use its reasonable best efforts to
consummate the Exchange Offer within 45 calendar days after the effective date
of the Exchange Offer Registration Statement, which date of consummation it is
agreed shall not occur on or before July 30, 2001. The Exchange Senior
Securities will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the Guarantor shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder (other than Participating Broker-Dealers (as defined
in Section 3(f)) eligible and electing to exchange Registrable Senior Securities
for Exchange Senior Securities (assuming that such Holder is not an affiliate of
the Company or the Guarantor within the meaning of Rule 405 under the 1933 Act,
acquires the Exchange Senior Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Senior Securities) to trade such Exchange Senior Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company and the
Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20
business days (or longer if required by applicable federal and state
securities laws) after the date notice thereof is mailed to the
Holders;
(iii) use the services of the Depositary for the Exchange
Offer with respect to Senior Securities evidenced by global
certificates;
(iv) permit Holders to withdraw tendered Registrable Senior
Securities at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall remain
open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Senior
Securities delivered for exchange, and
5
a statement that such Holder is withdrawing its election to have such
Senior Securities exchanged; and
(v) otherwise comply in all material respects with all
applicable federal and state securities laws relating to the Exchange
Offer.
As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantor shall:
(i) accept for exchange Registrable Senior Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Senior Securities so accepted for exchange
by the Company and the Guarantor; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Senior Securities to each Holder of Registrable Senior
Securities equal in principal amount to the principal amount of the
Registrable Senior Securities of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date
on which interest was paid on the Registrable Senior Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable Senior
Securities, from the Closing Time. The Exchange Offer shall not be subject to
any conditions, other than (i) that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) that no action or proceeding shall
have been instituted or threatened in any court or before any governmental
agency with respect to the Exchange Offer which, in the Company's or the
Guarantor's judgment, would impair the ability of the Company and the Guarantor
to proceed with the Exchange Offer, (iii) that no law, rule or regulation or
applicable interpretations of the staff of the SEC has been issued or
promulgated which, in the good faith determination of the Company or the
Guarantor, does not permit the Company and the Guarantor to effect the Exchange
Offer and (iv) that the Holders tender the Registrable Senior Securities to the
Company in accordance with the Exchange Offer.
Each Holder of Registrable Senior Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Senior
Securities for Exchange Senior Securities in the Exchange Offer shall have
represented that (i) it is not an affiliate (as defined in Rule 405 under the
1933 Act) of the Company or the Guarantor or, if it is an affiliate, it will
comply with the registration and prospectus delivery requirements of the 1933
Act, to the extent applicable, (ii) any Exchange Senior Securities to be
received by it will be acquired in the ordinary course of business, (iii) at the
time of the commencement of the Exchange Offer, it has no arrangement with any
Person to participate in the distribution (within the meaning of the 1933 Act)
of the Senior Securities or the Exchange Senior Securities, (iv) it is not
acting on behalf of any person who could not truthfully make the foregoing
representations and (v) it shall have
6
made such other representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render the use of Form S-4 or
another appropriate form under the 1933 Act available or for the Exchange Offer
Registration Statement to be declared effective. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Senior Securities in the Exchange Offer.
(b) Shelf Registration.
(i) If, because of any change in law or applicable
interpretations thereof by the Staff of the SEC, the Company and the Guarantor
are not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, (ii) if for any other reason the Exchange Offer Registration Statement
is not declared effective within 180 calendar days following the Closing Time or
the Exchange Offer is not consummated within 45 days after effectiveness of the
Exchange Offer Registration Statement, provided that such consummation shall not
be required to occur on or before July 30, 2001 (provided further that, if the
Exchange Offer Registration Statement shall be declared effective after such
180-day period or if the Exchange Offer shall be consummated after such 45-day
period, then the Company's and the Guarantor's obligations under this clause
(ii) arising from the failure of the Exchange Offer Registration Statement to be
declared effective within such 180-day period or the failure of the Exchange
Offer to be consummated within such 45-day period, respectively, shall
terminate), (iii) if any Holder (other than an Initial Purchaser) is not
eligible to participate in the Exchange Offer or elects to participate in the
Exchange Offer but does not receive fully tradeable Exchange Senior Securities
pursuant to the Exchange Offer or (iv) upon the written request of any of the
Initial Purchasers within 90 days following the consummation of the Exchange
Offer; provided that such Initial Purchaser shall hold Registrable Senior
Securities that it acquired directly from the Company and if such Initial
Purchaser is not permitted, in the reasonable opinion of counsel to such Initial
Purchaser, pursuant to applicable law or applicable interpretation of the staff
of the SEC, to participate in the Exchange Offer, the Company and the Guarantor
shall, at their cost:
(A) as promptly as practicable, but no later than (a) the
210th day after the Closing Time or (b) the 60th day after such filing
obligations arises, whichever is later, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Senior Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Senior Securities and set forth in such
Shelf Registration Statement;
(B) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as promptly
as practicable, but in no event later than the 240th day after the
Closing Time (or within 30 days of a request of any Initial Purchaser);
provided that, with respect to Exchange Senior Securities received by a
broker-dealer in exchange for any securities that were acquired by such
broker-dealer as a result of market-making or other trading activities,
the Company and the Guarantor may, if permitted by current
interpretations by the staff of the SEC, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its
7
obligations under paragraph (A) solely with respect to broker-dealers
who acquired their Securities as a result of market-making or other
trading activities, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement. In the
event that the Company and the Guarantor are required to file a Shelf
Registration Statement upon the request of any Holder (other than an
Initial Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Initial
Purchaser pursuant to clause (iv) above, the Company and the Guarantor
shall file and use their reasonable best efforts to have declared
effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Senior
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Senior Securities held
by such Holder or such Initial Purchaser, as applicable, after
completion of the Exchange Offer;
(C) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years, plus any extensions as
provided in Section 2(d)(iii) below, after its effective date or such
shorter period which will terminate when all of the Registrable Senior
Securities covered by the Shelf Registration Statement (i) have been
sold pursuant to the Shelf Registration Statement, (ii) cease to be
outstanding or (iii) become eligible for resale pursuant to Rule 144
under the 1934 Act without volume restrictions; and
(D) notwithstanding any other provisions hereof, ensure that
(i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under
which they were made, not misleading; provided, however, clauses (ii)
and (iii) shall not apply to any information relating to any Initial
Purchaser or any Holder furnished to the Company in writing by such
Initial Purchaser or Holder expressly for use in the Shelf Registration
Statement.
The Company and the Guarantor shall only permit (i)
Registrable Senior Securities and (ii) any outstanding unregistered Senior
Securities under the registration rights agreement dated January 17, 2001 among
the Company, the Guarantor and Initial Purchasers thereto (the "January 17, 2001
Agreement") to be included in the Shelf Registration Statement. All terms used
in subsection (ii) of this paragraph shall have the meanings assigned to them in
the January 17, 2001 Agreement.
8
The Company and the Guarantor further agree, if necessary, to
supplement or amend the Shelf Registration Statement if reasonably requested by
the Majority Holders with respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to use their reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable thereafter and to
furnish to the Holders of Registrable Senior Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company and the Guarantor shall pay all
Registration Expenses in connection with the registration pursuant to Sections
2(a) and 2(b) and, in the case of any Shelf Registration Statement, will
reimburse the Holders or the Initial Purchasers for the reasonable fees and
disbursements of one counsel which shall be Hughes Hubbard & Reed LLP (unless
otherwise designated in writing by the Majority Holders) to act as counsel for
the Holders of the Registrable Senior Securities in connection therewith. Each
Holder shall pay all expenses of its counsel other than as set forth in the
preceding sentence, underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable Senior
Securities pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company and the Guarantor shall be deemed not to have
used their respective reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite periods set forth herein
if the Company or the Guarantor voluntarily takes any action that could
reasonably be expected to result in any such Registration Statement not being
declared effective or remaining effective or in the Holders of Registrable
Senior Securities covered thereby not being able to exchange or offer and sell
such Registrable Senior Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company or the
Guarantor in good faith and for valid business reasons (but not including
avoidance of the Company's or the Guarantor's obligations hereunder), including
the acquisition or divestiture of assets or a material corporate transaction or
event so long as the Company and the Guarantor promptly comply with the
requirements of Section 3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof shall not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Senior Securities pursuant to a
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Registration Statement shall be deemed not to have been effective during the
period of such interference, until the offering of Registrable Senior Securities
pursuant to such Registration Statement may legally resume.
(iii) During any 365-day period, the Company and the Guarantor
may suspend the availability of a Shelf Registration Statement and the use of
the related Prospectus, as provided in Section 3(e)(vi) and the last paragraph
of Section 3 hereof, for up to four periods of up to 45 consecutive days (except
for the consecutive 45-day period immediately prior to
9
maturity of the Senior Securities), but no more than an aggregate 90 days during
any 365-day period, if any event shall occur (A) as set forth in Section 2(d)(i)
or (B) as a result of which it shall be necessary, in the good faith
determination of the board of directors of the Company or the Guarantor, to
amend the Shelf Registration Statement or amend or supplement any prospectus or
prospectus supplement thereunder in order that each such document not include
any untrue statement of fact or omit to state a material fact necessary to make
the statements therein not misleading in light of the circumstances under which
they were made, provided that any period during which the Company requires
Holders to refrain from disposing of their Registrable Senior Securities due to
a Material Event Election (an "Election Period") shall be deemed to trigger the
obligation of the Company to pay Additional Interest in accordance with Section
2(e) to the extent that such Election Period, together with all other days that
the Shelf Registration Statement has become unusable in any consecutive
twelve-month period, exceeds 90 days in the aggregate. The Two-Year Period
provided for in Section 2(b)(B) above shall be extended by an amount of time
equal to all such Election Periods.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the SEC on or prior to
the 60th calendar day after the Closing Time, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th
calendar day after the Closing Time, (iii) the Exchange Offer is not consummated
on or prior to the 45th calendar day following the effective date of the
Exchange Offer Registration Statement, provided that such consummation shall not
be required to occur on or before July 30, 2001, or (iv) if required, a Shelf
Registration Statement with respect to the Registrable Senior Securities is not
declared effective on or prior to the 240th calendar day after the Closing Time,
or (v) the Election Periods exceed, in the aggregate, 90 days during any 365-day
period the per annum interest rate borne by the Registrable Senior Securities
shall be increased by one-quarter of one percent (0.25%) per annum following
such 60-day period in the case of clause (i) above, following such 180-day
period in the case of clause (ii) above, following such 45-day period in the
case of clause (iii) above, or following such 240-day period in the case of (iv)
above or 90-day period in the case of (v) above, which rate will be increased by
an additional quarter of one percent (0.25%) per annum for each 90-day period
during which noncompliance continues; provided that the aggregate increase in
such annual interest rate may in no event exceed one-half of one percent (0.50%)
per annum. Upon (w) the filing of the Exchange Offer Registration Statement
after the 60-day period described in clause (i) above, (x) the effectiveness of
the Exchange Offer Registration Statement after the 180-day period described in
clause (ii) above, (y) the consummation of the Exchange Offer after the 45-day
period described in clause (iii) above, or (z) the effectiveness of a Shelf
Registration Statement, after the 240-day period described in clause (iv) above,
the interest rate borne by the Senior Securities from the date of such filing,
effectiveness or consummation, as the case may be, shall be reduced to the
original interest rate if the Company and the Guarantor are otherwise in
compliance with this paragraph; provided, however, that, if after any such
reduction in interest rate, a different event specified in clause (i), (ii),
(iii), (iv) or (v) above occurs, the interest rate shall again be increased
pursuant to the foregoing provisions. No increase in the rate under clause (i),
(ii) or (iii) above shall be payable for any period during which a Shelf
Registration is effective.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company and the
Guarantor acknowledge that any failure
10
by the Company and the Guarantor to comply with its obligations under Sections
2(a) and 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's and the
Guarantor's obligations under Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations
of the Company and the Guarantor with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Guarantor shall:
(a) prepare and file with the SEC a Registration Statement,
within the time periods specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration Statement, be available
for the sale of the Registrable Senior Securities by the selling
Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC
to be filed therewith, and use its reasonable best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all Senior Securities covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Senior Securities, at least 15 days business days
prior to filing, that a Shelf Registration Statement with respect to
the Registrable Senior Securities is being filed and advising such
Holders that the distribution of Registrable Senior Securities will be
made in accordance with the method elected by the Majority Holders;
(ii) furnish to each Holder of Registrable Senior Securities, to
counsel for the Initial Purchasers, to counsel for the Holders and to
each underwriter of an underwritten offering of Registrable Senior
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter, or
their counsel, may reasonably request, including financial statements
and schedules and, if the Holder so reasonably requests, all exhibits
(including those incorporated by reference) in order to facilitate the
public sale or other disposition of the Registrable Senior Securities;
and (iii) subject to the last paragraph of this Section 3, hereby
consent to the use of the Prospectus, including each preliminary
Prospectus, or any amendment or supplement thereto by each of the
selling Holders of Registrable Senior Securities in connection with the
offering and sale of the
11
Registrable Senior Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Senior Securities under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Senior Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Senior
Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate
with the Holders in connection with any filings required to be made
with the NASD, keep each such registration or qualification effective
during the period such Registration Statement is required to be
effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Senior
Securities owned by such Holder; provided, however, that neither the
Company nor the Guarantor shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d) or
(ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Senior Securities and counsel for such Holders promptly
and, if requested by such Holder or counsel, confirm such advice in
writing promptly (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional information
after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Senior Securities covered thereby, the representations
and warranties of the Company and the Guarantor contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and
correct in all material respects, (v) of the receipt by the Company or
the Guarantor of any notification with respect to the suspension of the
qualification of the Registrable Senior Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (vi) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective
(including as contemplated in Section 2(d)(iii) hereof) which (A) is
contemplated in Section 2(d)(i) or (B) makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the
Company or the Guarantor that a post-effective amendment to a
Registration Statement would be appropriate;
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have
12
exchanged their Registrable Senior Securities for Exchange Senior
Securities for the resale of such Exchange Senior Securities, (ii)
furnish to each broker-dealer who desires to participate in the
Exchange Offer, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as
such broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Senior Securities acquired for its
own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Senior Securities for Registrable Senior Securities pursuant to the
Exchange Offer, may be a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Senior Securities, (iv) subject to the last
paragraph of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any broker-dealer in connection
with the sale or transfer of the Exchange Senior Securities covered by
the Prospectus or any amendment or supplement thereto, and (v) include
in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Senior Securities. If
the undersigned is a broker-dealer that will receive Exchange
Senior Securities for its own account in exchange for
Registrable Senior Securities, it represents that the
Registrable Senior Securities to be exchanged for Exchange
Senior Securities were acquired by it as a result of
market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Senior Securities pursuant to the Exchange
Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the 1933 Act;"
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company and the Guarantor shall
use their reasonable best efforts to cause to be delivered at the
request of an entity representing the Participating Broker-Dealers
(which entity shall be Merrill Lynch, Pierce, Fenner & Smith
Incorporated, unless it elects not to act as such representative) any
"cold comfort" letters with respect to the Prospectus in the form
existing on the last date for which exchanges are accepted pursuant to
the Exchange Offer and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (C)
below;
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company and the Guarantor shall
use their reasonable best efforts to maintain the effectiveness of the
Exchange Offer Registration Statement for a period of
13
180 days following the closing of the Exchange Offer or such shorter
period which will terminate when the Participating Broker-Dealers have
completed all resales subject to applicable prospectus delivery
requirements; and
(D) the Company and the Guarantor shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement as would otherwise be contemplated by Section
3(b) hereof, or take any other action as a result of this Section 3(f),
for a period exceeding 180 days after the last date for which exchanges
are accepted pursuant to the Exchange Offer (as such period may be
extended by the Company and the Guarantor) and Participating
Broker-Dealers shall not be authorized by the Company and the Guarantor
to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Senior Securities copies
of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or
for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each
Holder of Registrable Senior Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Senior Securities to facilitate the
timely preparation and delivery of certificates representing
Registrable Senior Securities to be sold and not bearing any
restrictive legends; and cause such Registrable Senior Securities to be
in such denominations (consistent with the provisions of the Indenture)
in a form eligible for deposit with the Depositary and registered in
such names as the selling Holders or the underwriters, if any, may
reasonably request in writing at least one business day prior to the
closing of any sale of Registrable Senior Securities;
(k) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use its reasonable best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Senior Securities, such
Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company and the Guarantor
agree to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of
14
such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company and the Guarantor have amended or
supplemented the Prospectus to correct such misstatement or omission.
At such time as such public disclosure is otherwise made or the Company
and the Guarantor determine that such disclosure is not necessary, in
each case to correct any misstatement of a material fact or to include
any omitted material fact, the Company and the Guarantor agree promptly
to notify each Holder of such determination and to furnish each Holder
such numbers of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(l) obtain CUSIP numbers, ISINs and common codes for all
Exchange Senior Securities or Registrable Senior Securities, as the
case may be (which CUSIP numbers, ISINs and common codes, in the case
of the Exchange Senior Securities to be issued in relation to the 2006
Senior Notes, are to be identical to those CUSIP numbers, ISINs and
common codes then being used by the Company's registered 6.40% Senior
Notes due 2006 issued on March 19, 2001), not later than the effective
date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Senior Securities or Registrable Senior
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Senior Securities, or Registrable Senior
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders of the Registrable Senior Securities being sold) in
order to expedite or facilitate the disposition of such Registrable
Senior Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, in a manner that is
reasonable and customary:
(i) make such representations and warranties to the
Holders of such Registrable Senior Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the Company and
the Guarantor and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the
Holders of a majority in principal amount of the Registrable
Senior Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
underwritten
15
offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates
thereof from the Company's and the Guarantor's independent
certified public accountants addressed to the underwriters, if
any, and will use reasonable best efforts to have such letters
addressed to the selling Holders of Registrable Senior
Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable Senior
Securities, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into in
the case of an underwritten offering, cause the same to set
forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures
set forth in Section 5 hereof with respect to the underwriters
and all other parties to be indemnified pursuant to Section 5
hereof; and
(vi) deliver such documents and certificates as may
be reasonably requested by the underwriters or the Holders and
as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such
Registration Statement (and, if appropriate, each post-effective
amendment thereto) and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder. In the case
of any underwritten offering, the Company and the Guarantor shall
provide written notice to the Holders of all Registrable Senior
Securities of such underwritten offering at least thirty days prior to
the filing of a prospectus supplement for such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate
in such underwritten offering, (y) specify a date, which shall be no
earlier than ten business days following the date of such notice, by
which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten
offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Senior
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any U.S. counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company and the Guarantor reasonably requested by any such Persons, and
cause the respective officers, directors, employees, and any other
agents of the Company and the Guarantor to supply all information
reasonably requested by any such representative, underwriter, special
16
counsel or accountant in connection with a Registration Statement;
provided that any such records, documents, properties and such
information that is designated in writing by the Company and the
Guarantor, in good faith, as confidential at the time of delivery of
such records, documents, properties or information shall be kept
confidential by any such representative, underwriter, counsel or
accountant and shall be used only in connection with such Shelf
Registration Statement, unless such information has become available
(not in violation of this Agreement) to the public generally or through
a third party without an accompanying obligation of confidentiality,
and except that such representative, underwriter, counsel or accountant
shall have no liability, and shall not be in breach of this provision,
if disclosure of such confidential information is made in connection
with a court proceeding or required by law, and the Company and the
Guarantor shall be entitled to request that such representative,
underwriter, counsel or accountant sign a confidentiality agreement to
the foregoing effect. Each such person will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public through no fault or
action of such person. Each selling Holder of such Registrable Senior
Securities will be required to further agree that it will, upon
learning that disclosure of confidential information is necessary, give
notice to the Company to allow the Company at its expense to undertake
appropriate action to prevent disclosure of the confidential
information;
(p) (i) in the case of an Exchange Offer, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers, and make
such changes in any such document prior to the filing thereof as the
Initial Purchasers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Senior Securities, to the Initial Purchasers, to
counsel on behalf of the Holders and to the underwriter or underwriters
of an underwritten offering of Registrable Senior Securities, if any,
and make such changes in any such document prior to the filing thereof
as counsel to the Initial Purchasers, the Holders or any underwriter
may reasonably request; and (iii) cause the representatives of the
Company and the Guarantor to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Senior Securities, the Initial Purchasers on behalf of such Holders or
any underwriter, and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which such Holders,
the Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall reasonably object within a reasonable time period;
(q) in the case of the Exchange Offer, use their reasonable
best efforts to cause all Exchange Senior Securities and, in the case
of a Shelf Registration, use their reasonable best efforts to cause all
Registrable Senior Securities, to be listed on The
17
Luxembourg Stock Exchange and any other securities exchange on which
similar debt securities issued by the Company and the Guarantor are
then listed, if , in the case of a Shelf Registration, requested by the
Majority Holders or by the underwriter or underwriters of an
underwritten offering of Registrable Senior Securities, if any;
(r) in the case of a Shelf Registration, use their reasonable
best efforts to cause the Registrable Senior Securities to be rated
with the appropriate rating agencies, if so requested by the Majority
Holders or by the underwriter or underwriters of an underwritten
offering, unless the Registrable Senior Securities are already so
rated;
(s) otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the SEC and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(t) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company and
the Guarantor may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Senior Securities to furnish to
the Company and the Guarantor or their counsel such information regarding such
Holder and the proposed distribution by such Holder of such Registrable Senior
Securities, as the Company or the Guarantor may from time to time reasonably
request, and agree in writing to be bound by the Agreement, including the
indemnification provisions.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company or the Guarantor of the
happening of any event or the discovery of any facts, each of the kind described
in Sections 2(d)(i) and 3(e)(ii)-(vii) hereof, such Holder will forthwith
discontinue disposition of Registrable Senior Securities pursuant to a
Registration Statement until such Holder's receipt of (i) the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof or (ii)
written notice from the Company or the Guarantor that the Shelf Registration
Statement is once again effective and that no supplement or amendment is
required. If so directed by the Company or the Guarantor, such Holder will
deliver to the Company (at the Company's expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Senior Securities current at the time of
receipt of such notice.
If the Company or the Guarantor shall give any such notice to
suspend the disposition of Registrable Senior Securities pursuant to a Shelf
Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Sections 2(d)(i) and
3(e)(vi) hereof, the Company and the Guarantor shall be deemed to have used
their reasonable best efforts to keep the Shelf Registration Statement effective
during such period of suspension; provided that (i) such period of suspension
shall not exceed the time periods provided in Section 2(d)(iii) hereof and (ii)
the Company and the Guarantor shall, if necessary, use their reasonable best
efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement and
shall
18
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable
Senior Securities covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Majority
Holders of such Registrable Senior Securities included in such offering and
shall be reasonably acceptable to the Company.
No Holder of Registrable Senior Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Senior Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser, each Holder,
including Participating Broker-Dealers, each underwriter who participates in an
offering of Registrable Senior Securities, their respective affiliates, and
their respective directors, officers, employees, agents, and each Person, if
any, who controls any Initial Purchaser or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the Initial
Purchaser, any Holder or any such controlling or affiliated Person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, pursuant to which Exchange
Senior Securities or Registrable Senior Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company and the
Guarantor shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Initial
Purchaser or any Holder furnished to the Company and the Guarantor in writing by
such Initial Purchaser or by or relating to any Holder or underwriter who
participates in an offering of Registrable Senior Securities, in each case
expressly for use therein.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantor, each Initial Purchaser,
each underwriter who participates
19
in an offering of Registrable Senior Securities, and the other selling Holders,
and each of their respective directors and officers (including each director and
officer of the Company and the Guarantor who signed the Registration Statement)
and each Person, if any, who controls the Company or the Guarantor, any Initial
Purchaser, any underwriter or any other selling Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses described in the indemnity contained in
Section 5(a), as incurred), but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder expressly for use
in any Registration Statement or any amendment thereof or any Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing (but the
failure to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent it is
materially prejudiced or harmed) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchasers and all Persons, if
any, who control any Initial Purchaser within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company and
the Guarantor, their respective directors, their respective officers who sign
the Registration Statement and all Persons, if any, who control the Company or
the Guarantor within the meaning of either such Section and (c) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all Persons, if any, who control any Holders within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Initial
Purchasers and such control Persons of the Initial Purchasers, such firm shall
be designated in writing by Merrill Lynch. In the case of any such separate firm
for the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated in writing by the Company. The indemnifying party shall not
be liable for any settlement of any proceeding affected without its written
consent, but if settled with such consent or if there is a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
20
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, which consent shall not be
unreasonably withheld, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding and (ii) does not include a statement as to an admission of fault,
culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantor, the Initial Purchasers, and the Holders of Registrable Senior
Securities respective obligations to contribute pursuant to this Section 5 are
several in proportion to the respective number of Senior Securities they have
purchased hereunder, and not joint.
(e) The Company, the Guarantor, the Initial Purchasers, and
each Holder of Registrable Senior Securities agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 5, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Senior
Securities were sold by such Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
21
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5, each Person, if
any, who controls an Initial Purchaser or Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company or the Guarantor, each officer of the Company or the Guarantor who
signed the Registration Statement, and each Person, if any, who controls the
Company or the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Guarantor. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any Holder, or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantor,
their officers or directors or any Person controlling the Company or the
Guarantor, (iii) acceptance of any of the Exchange Senior Securities and (iv)
any sale of Registrable Senior Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder, that if it ceases to be so required to file such reports, it
will upon the request of any Holder of Registrable Senior Securities (i) make
publicly available or cause to be made publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
or cause to be delivered such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable Senior Securities may
reasonably request, and (iii) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Senior Securities without registration under
the 1933 Act within the limitation of the exemptions provided by (x) Rule 144
under the 1933 Act, as such Rule may be amended from time to time, (y) Rule 144A
under the 1933 Act, as such Rule may be amended from time to time, or (z) any
similar rules or regulations hereafter adopted by the SEC. Upon the written
request of any Holder of Registrable Senior Securities, the Company will deliver
to such Holder a written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. Neither the Company nor the
Guarantor has entered into nor will the Company or the Guarantor on or after the
date of this Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Senior Securities in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or the Guarantor's other
issued and outstanding securities under any such agreements.
22
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the material provisions
hereof may not be given unless the Company has obtained the written consent of
the Majority Holders of the outstanding Registrable Senior Securities affected
by such amendment, modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder (other than an Initial Purchaser), at the most current address
set forth on the records of the Registrar under the Indenture, (ii) if to an
Initial Purchaser, at the most current address given by such Initial Purchaser
to the Company by means of a notice given in accordance with the provisions of
this Section 6(d), which address initially is the address set forth in the
Purchase Agreement; and (iii) if to the Company and the Guarantor, initially at
the address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Senior Securities in violation of the terms hereof or of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Registrable
Senior Securities, in any manner, whether by operation of law or otherwise, such
Registrable Senior Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Senior Securities, such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantor on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed
23
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
24
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
VIACOM INC.
By: /s/ Robert G. Freedline
-----------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC., as Guarantor
By: /s/ Robert G. Freedline
-----------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
Confirmed and Accepted,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Sabina Ceddia
--------------------------------------------
Name: Sabina Ceddia
Title: Duly Authorized Attorney
SCHEDULE A
INITIAL PURCHASERS
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Smith Barney Inc.
Barclays Capital Inc.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston Corporation
UBS Warburg LLC
Scotia Capital (USA) Inc.
Utendahl Capital Partners, L.P.
Exhibit 5.1
July 10, 2001
Board of Directors
Viacom Inc.
1515 Broadway
New York, NY 10036
Viacom Inc. and Viacom International Inc.
-----------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Viacom Inc. (the "Company") and
Viacom International Inc. (the "Guarantor") in connection with the preparation
of a registration statement on Form S-4 (the "Registration Statement") being
filed with the Securities and Exchange Commission relating to the registration
of the Company's 6.40% Senior Notes due 2006 (the "2006 Senior Notes"), its
7.70% Senior Notes due 2010 (the "2010 Senior Notes"), its 6.625% Senior Notes
due 2011 (the "2011 Senior Notes") and its 7.875% Senior Debentures due 2030
(the "Senior Debentures", and together with the 2006 Senior Notes, the 2010
Senior Notes and the 2011 Senior Notes, the "Senior Securities") and the
unconditional guarantees as to the payment of principal and interest on the
Senior Securities by the Guarantor (the "Senior Guarantees"). Pursuant to the
Registration Statement, the Company is offering to exchange (the "Exchange
Offer") up to $403,075,000 aggregate principal amount of 2006 Senior Notes for a
like amount of its outstanding 6.40% Senior Notes due 2006 (the "Original 2006
Notes"), up to $100,000,000 aggregate principal amount of 2010 Senior Notes for
a like amount of its outstanding 7.70% Senior Notes due 2010 (the "Original 2010
Notes"), up to $1,000,000,000 aggregate principal amount of 2011 Senior Notes
for a like amount of its outstanding 6.625% Senior Notes due 2011 (the "Original
2011 Notes") and up to $200,000 aggregate principal amount of Senior Debentures
for a like amount of its outstanding 7.875% Senior Debentures due 2030 (the
"Original Senior Debentures," and together with the Original 2006 Notes, the
Original 2010 Notes and the Original 2011 Notes, the "Original Senior
Securities") and to exchange the Senior Guarantees for the unconditional
guarantees as to the payment of principal and interest on the Original Senior
Securities by the Guarantor (the "Original Senior Guarantees"). The Senior
Securities and the Senior Guarantees will be issued upon consummation of the
Exchange Offer. The Original Senior Securities and Original Senior Guarantees
were, and the Senior Securities and the Senior Guarantees will be, issued
pursuant to an indenture, dated as of May 15, 1995, as supplemented by the First
Supplemental Indenture dated as of May 24, 1995, as supplemented and amended by
the Second Supplemental Indenture and Amendment No. 1 dated as of December 15,
1995, as supplemented by Third Supplemental Indenture dated as of July 22, 1996,
as supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000,
as further supplemented by the Fifth Supplemental Indenture dated as of January
17, 2001, as further supplemented by the Sixth Supplemental Indenture dated as
of May 17, 2001 and as further supplemented by the Seventh Supplemental
Indenture dated as of May 31, 2001 (as so supplemented and amended, the
"Indenture") among the Company, the Guarantor and Citibank N.A., as successor to
State Street Bank and Trust Company and The First National Bank of Boston,
trustee.
In our capacity as counsel to the Company and the Guarantor we
have examined (i) the Registration Statement, (ii) the Indenture and (iii) the
originals, or copies identified to our satisfaction, of such corporate records
of the Company and the Guarantor, certificates of public officials, officers of
the Company and the Guarantor, 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 the Company and the
Guarantor and others.
Our opinion set forth below is 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 when the
Senior Securities and the Senior Guarantees have been duly authorized and
executed by the Company and the Guarantor, respectively, the Senior Securities
(to which the Senior Guarantees will be affixed) have been authenticated by the
Trustee in accordance with the provisions of the Indenture and delivered to
holders tendering into the Exchange Offer in accordance with the terms of the
Exchange Offer as set forth in the Registration Statement, the Senior Securities
and the Senior Guarantees will be legally issued and will constitute valid and
binding obligations of the Company and the Guarantor, respectively, enforceable
against the Company and the Guarantor, respectively, in accordance with their
terms.
The opinion set forth above is 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 letter as an
exhibit to the Registration Statement and to the use of our name under the
heading "Legal Matters" in each of the two prospectuses included as part of the
Registration Statement.
Very truly yours,
STG/JA/JJC/ASG
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of our report dated February 12, 2001, except for the
first paragraph of note 2, which is as of February 21, 2001 relating to the
financial statements and financial statement schedule, which appears in Viacom
Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. We also
consent to the reference to us under the headings "Experts" in such Registration
Statement.
/s/
PricewaterhouseCoopers LLP
New York, New York
July 9, 2001
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our reports: (1) 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 dated March
21, 2000, appearing on page 67 of CBS Corporation's Form 10-K for the year ended
December 31, 1999; and (2) 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 dated March 21,
2000, appearing on page 51 of Infinity Broadcasting Corporation's Form 10-K for
the year ended December 31, 1999, each of which is incorporated by reference in
this Form S-4 registration statement of Viacom Inc. and Viacom International
Inc. We also consent to the reference to us under the headings "Experts" in such
Registration Statement.
/s/
KPMG LLP
New York, New York
July 9, 2001
Exhibit 24.1
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ George S. Abrams
---------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ David R. Andelman
---------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ George H. Conrades
----------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Philippe P. Dauman
----------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ William H. Gray III
-----------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Jan Leschly
---------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ David T. McLaughlin
-----------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Ken Miller
--------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Leslie Moonves
------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Frederic V. Salerno
-----------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Brent D. Redstone
---------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Shari Redstone
------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ William Schwartz
--------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Ivan Seidenberg
-------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Patty Stonesifer
--------------------
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, S-4 or S-8 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 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 such registration statements or
amendments thereto or supplements or amendments to such Prospectus, and (2) any
registration statements, reports and applications 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 7th day of
June, 2001.
/s/ Robert D. Walter
--------------------
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
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) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (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, NY 10036
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
Item 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
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of March 31, 2000 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, 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 9th day of
July, 2001.
CITIBANK, N.A.
By /s/ Nancy Forte
----------------------------------
Nancy Forte
Assistant Vice President
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATED
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on March 31,
2001, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash & balances due:
Noninterest-bearing balances. . . . . . . . . . . . .8,899,000
Interest-bearing balances . . . . . . . . . . . . . 21,247,000
Securities:
Held-to-Maturity securities. . . . . . . . . . . . . . . . . 0
Available-for-sale securities . . . . . . . . . . . 39,868,000
Federal funds sold . . . . . . . . . . . . . . . . .11,252,000
Loans and leases held for sale . . . . . . . . . . . 4,215,000
Loans and Leases, net of unearned
income . . . . . . . . . . . . . . . . . . . . . . 242,480,000
LESS: Allowance for loan
and lease losses . . . . . . . . . . . . . . . . . . 4,544,000
Loans and leases, net of
earned income and allowance . . . . . . . . . . . .237,936,000
Trading assets. . . . . . . . . . . . . . . . . . . 39,123,000
Premises and fixed assets . . . . . . . . . . . . . .3,974,000
Other real estate owned. . . . . . . . . . . . . . . . 286,000
Investments in unconsolidated
subsidiaries . . . . . . . . . . . . . . . . . . . . . 867,000
Customers' liability
on acceptances outstanding . . . . . . . . . . . . . 1,528,000
Intangible assets:
Goodwill . . . . . . . . . . . . . . . . . . . . . . 2,273,000
Other intangible assets. . . . . . . . . . . . . . . 3,595,000
Other assets . . . . . . . . . . . . . . . . . . . .20,806,000
TOTAL ASSETS . . . . . . . . . . . . . . . . . . ..395,869,000
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . 71,054,000
Noninterest-bearing . . . . . . . . . . . . . . . . 12,620,000
Interest-bearing . . . . . . . . . . . . . . . . . .58,434,000
In foreign offices . . . . . . . . . . . . . . . . 212,602,000
Noninterest-bearing . . . . . . . . . . . . . . . . 14,351,000
Interest-bearing . . . . . . . . . . . . . . . . . 198,251,000
Federal funds purchased and
securities sold . . . . . . . . . . . . . . . . . . .6,932,000
Trading liabilities. . . . . . . . . . . . . . . . .29,238,000
Other borrowed money . . . . . . . . . . . . . . . .23,697,000
Bank's liability on acceptances . . . . . . . . . . .1,528,000
Subordinated notes and
debentures. . . . . . . . . . . . . . . . . . . . . .8,675,000
Other liabilities . . . . . . . . . . . . . . . . . 14,481,000
TOTAL LIABILITIES . . . . . . . . . . . . . . . . .368,207,000
EQUITY CAPITAL
Perpetual preferred stock . . . . . . . . . . . . . . . . . .0
Common stock . . . . . . . . . . . . . . . . . . . . . 751,000
Surplus . . . . . . . . . . . . . . . . . . . . . . 11,554,000
Retained earnings . . . . . . . . . . . . . . . . . 15,961,000
Accumulated other
comprehensive income . . . . . . . . . . . . . . . . .-813,000
Other equity capital components. . . . . . . . . . . . . . . 0
TOTAL EQUITY CAPITAL. . . . . . . . . . . . . . . . 27,453,000
TOTAL LIABILITIES, MINORITY
INTEREST AND EQUITY
CAPITAL . . . . . . . . . . . . . . . . . . . . . 395,869,000
I, Roger W. Trupin, Controller of the abovenamed bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
VICTOR J. MENEZES
WILLIAM R. RHODES
ALAN S. MACDONALD
EXHIBIT 99.1
VIACOM INC.
FORM OF LETTER OF TRANSMITTAL FOR THE
OFFER TO EXCHANGE
Unregistered 6.40% Senior Notes due 2006
($400,000,000 aggregate principal amount outstanding issued May 17, 2001)
for
6.40% Senior Notes due 2006
that have been registered under the Securities Act of 1933
and
Unregistered 6.625% Senior Notes due 2011
($1,000,000,000 aggregate principal amount outstanding issued May 17, 2001)
for
6.625% Senior Notes due 2011
that have been registered under the Securities Act of 1933
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2001
(THE "EXPIRATION DATE") UNLESS THE EXCHANGE OFFER IS EXTENDED BY VIACOM IN ITS
SOLE DISCRETION.
TENDERS OF UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Deliver To:
Principal Exchange Agent: Luxembourg Exchange Agent:
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Attn: Agency & Trust Services Attn: Corporate Trust and Agencies
Telephone: (800) 422-2066 Telephone: (352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (352) 47 97 73 951
Delivery of this letter of transmittal to an address, or transmission via
telegram, telex or facsimile, other than to the exchange agents as set forth
above (the "Exchange Agents") will not constitute a valid delivery. The method
of delivery of all documents, including certificates, is at the risk of the
holder. If delivery is by mail, we recommend the use of registered mail with
return receipt requested, properly insured. You should read the instructions
accompanying this letter of transmittal carefully before you complete this
letter of transmittal.
The undersigned acknowledges that he or she has received the
Prospectus, dated , 2001 (the "Prospectus"), of Viacom Inc. ("Viacom") and
Viacom International Inc. ("Viacom International") and this letter of
transmittal and the instructions hereto (the "Letter of Transmittal"), which
together constitute Viacom's offer (the "Exchange Offer") to exchange up to
$400,000,000 aggregate principal amount of 6.40% senior notes due 2006, which
are registered under the Securities Act of 1933, for its outstanding
unregistered 6.40% senior notes due 2006 issued on May 17, 2001, and
$1,000,000,000 aggregate principal amount of 6.625% senior notes due 2011, which
are registered under the Securities Act of 1933, for its outstanding
unregistered 6.625% senior notes due 2011 issued on May 17, 2001, pursuant to a
Registration Statement of which the Prospectus is a part. The unregistered
senior securities are unconditionally guaranteed as to payment of principal and
interest by Viacom International Inc., a wholly owned subsidiary of Viacom.
The outstanding unregistered 6.40% senior notes due 2006 have CUSIP
numbers 925524AR1 or U9222XAE7. The outstanding 6.625% senior notes due 2011
have CUSIP numbers 925524AP5 or U9222XAD9.
The term "Expiration Date" shall mean 5:00 p.m. New York City time on
, 2001, unless Viacom, in its sole discretion, extends the Exchange
Offer, in which case the term shall mean the latest date and time to which the
Exchange Offer is extended. Whenever we refer to the unregistered senior notes
due 2006 and the unregistered senior notes due 2011, we will refer to them as
the "unregistered senior securities." Whenever we refer to the exchange senior
notes due 2006 and the exchange senior notes due 2011, we will refer to them as
the "exchange senior securities." All other terms used but not defined herein
have the meaning given to them in the Prospectus.
This Letter of Transmittal is to be used if (1) certificates
representing unregistered senior securities are to be physically delivered to
the Exchange Agents by Holders (as defined below), (2) the unregistered senior
securities are to be tendered by book-entry transfer pursuant to the procedures
set forth in the Prospectus under "The Exchange Offer--Book-Entry Transfer" or
(3) tender of the unregistered senior securities is to be made by Holders
according to the guaranteed delivery procedures set forth in the Prospectus
under "The Exchange Offer--Guaranteed Delivery Procedures." Delivery of this
Letter of Transmittal and any other required documents must be made to the
Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG DOES
NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "Holder" as used herein means any person in whose name
unregistered senior securities are registered on the books of Viacom or any
other person who has obtained a properly completed bond power from the
registered holder.
Any Holder of unregistered senior securities who wishes to tender his,
her or its unregistered senior securities must, prior to the Expiration Date,
either: (a) complete, sign and deliver this Letter of Transmittal, or a
facsimile thereof, to the Exchange Agent, in person or to the address or
facsimile number set forth above and tender (and not withdraw) his, her or its
unregistered senior securities, or (b) if a tender of unregistered senior
securities is to be made by book-entry transfer to the account maintained by the
Exchange Agent at DTC, Euroclear or Clearstream Luxembourg, confirm such
book-entry transfer, including the delivery of an Agent's Message (a "Book-Entry
Confirmation"), in each case in accordance with the procedures for tendering
described in the Instructions to this Letter of Transmittal.
Holders of unregistered senior securities whose certificates are not
immediately available or who are unable to deliver their certificates or
Book-Entry Confirmation and all other documents required by this Letter of
Transmittal to be delivered to the Exchange Agent on or prior to the Expiration
Date, must tender their unregistered senior securities according to the
guaranteed delivery procedures set forth under the caption "The Exchange
Offer--Guaranteed Delivery Procedures" in the Prospectus. (See Instruction 1.)
2
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the unregistered senior securities validly tendered
and not withdrawn and the issuance of the exchange senior securities will be
made promptly following the Expiration Date. For the purposes of the Exchange
Offer, Viacom shall be deemed to have accepted for exchange validly tendered
unregistered senior securities when, as and if Viacom has given written notice
thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
11.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR UNREGISTERED
SENIOR SECURITIES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND
COMPLY WITH ALL OF ITS TERMS.
3
Please list below the unregistered senior securities to which this
Letter of Transmittal relates. If the space provided below is inadequate, the
Certificate Numbers and Principal Amounts should be listed on a separate signed
schedule, attached hereto. The minimum permitted tender is $1,000 in principal
amount. All other tenders must be in integral multiples of $1,000.
- -----------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF UNREGISTERED SENIOR SECURITIES
- -----------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) Certificate Number(s)
of Holder(s) Type of Security (Attach signed list if Aggregate Principal
(Please fill in, if blank) Tendered necessary) Amount Tendered
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF UNREGISTERED
SENIOR SECURITIES TENDERED:
- -----------------------------------------------------------------------------------------------------------------------
o CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED BY DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG TO THE EXCHANGE
AGENT'S ACCOUNT AT DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: _______________________________________
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: _________
Transaction Code No.: ________________________________________________
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities, the Letter of Transmittal
or any other required documents to the applicable Exchange Agent prior to the
Expiration Date, or cannot complete the procedure for book-entry transfer on a
timely basis, may effect a tender according to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange
Offer--Guaranteed Delivery Procedures."
o CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY
DELIVERED TO THE APPLICABLE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Holder(s) of unregistered senior securities: _______________
Window Ticket No. (if any): ___________________________________________
Date of Execution of Notice of Guaranteed Delivery: ___________________
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: _________
4
If Delivered by Book-Entry Transfer: _________________________________
Name of Tendering Institution: ________________________________
Transaction Code No.: _________________________________________
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: __________________________________________________________
Address: _______________________________________________________
5
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to Viacom the principal amount of unregistered senior
securities indicated above. Subject to and effective upon the acceptance for
exchange of the principal amount of unregistered senior securities tendered
hereby in accordance with this Letter of Transmittal and the accompanying
instructions, the undersigned sells, assigns and transfers to, or upon the order
of, Viacom all right, title and interest in and to the unregistered senior
securities tendered hereby. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agents its agent and attorney-in-fact (with full knowledge
that the Exchange Agents also act as agents of Viacom and the Principal Exchange
Agent acts as Trustee under the Indentures for the unregistered senior
securities and the exchange senior securities) with respect to the tendered
unregistered senior securities with full power of substitution to (i) deliver
certificates for such unregistered senior securities to Viacom, or transfer
ownership of such unregistered senior securities on the account books maintained
by DTC, Euroclear or Clearstream Luxembourg, as the case may be, together, in
any such case, with all accompanying evidences of transfer and authenticity to,
or upon the order of, Viacom and (ii) present such unregistered senior
securities for transfer on the books of Viacom and receive all benefits and
otherwise exercise all rights of beneficial ownership of such unregistered
senior securities, all in accordance with the terms of the Exchange Offer. The
power of attorney granted in this paragraph shall be deemed irrevocable and
coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, exchange, sell, assign and transfer the
unregistered senior securities tendered hereby and to acquire the exchange
senior securities issuable upon the exchange of the unregistered senior
securities, and that Viacom will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim, when the same are acquired by Viacom. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
upon an interpretation by the staff of the Securities and Exchange Commission
that the exchange senior securities issued in exchange for the unregistered
senior securities pursuant to the Exchange Offer may be offered for sale, resold
and otherwise transferred by holders thereof (other than a broker-dealer who
purchased such unregistered senior securities directly from Viacom for resale
pursuant to Rule 144A, Regulation S or any other available exemption under the
Securities Act or a holder that is an "affiliate" of Viacom or Viacom
International within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such exchange senior securities are acquired by a
non-affiliate in the ordinary course of such holder's business and such holders
have no arrangement or understanding with any person to participate in the
distribution of such exchange senior securities.
The undersigned Holder represents and warrants that
(a) the exchange senior securities acquired pursuant to the
Exchange Offer are being acquired in the ordinary course of
business of the person receiving the exchange senior
securities, whether or not the person is the Holder,
(b) neither the undersigned Holder nor any other recipient of the
exchange senior securities (if different than the Holder) is
engaged in, intends to engage in or has any arrangement or
understanding with any person to participate in the
distribution of the unregistered senior securities or exchange
senior securities,
(c) neither the undersigned Holder nor any other recipient is an
"affiliate" of Viacom or Viacom International within the
meaning of Rule 405 promulgated under the Securities Act
6
or, if such Holder is an affiliate, that such Holder will
comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable,
(d) if the undersigned is a broker-dealer, it has not entered into
any arrangement or understanding with Viacom or Viacom
International or any "affiliate" of Viacom or Viacom
International (within the meaning of Rule 405 under the
Securities Act) to distribute the exchange senior securities,
(e) if the undersigned is a broker-dealer, the undersigned further
represents and warrants that if the undersigned broker-dealer
will receive exchange senior securities for its own account in
exchange for unregistered senior securities that were acquired
as a result of market-making activities or other trading
activities, the holder will, in connection with any resale of
the exchange senior securities, deliver a prospectus meeting
the requirements of the Securities Act (for which purposes,
the delivery of the Prospectus, as the same may be hereafter
supplemented or amended, shall be sufficient) in connection
with any resale of exchange senior securities received in the
Exchange Offer (such a broker-dealer will not be deemed,
solely by reason of such acknowledgment and prospectus
delivery, to admit that it is an "underwriter" within the
meaning of the Securities Act) and
(f) the undersigned Holder is not acting on behalf of any person
or entity that could not truthfully make these
representations.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agents or Viacom to be necessary or desirable
to complete the exchange, assignment and transfer of the unregistered senior
securities tendered hereby or transfer of ownership of such unregistered senior
securities on the account books maintained by a book-entry transfer facility.
The undersigned understands and agrees that Viacom reserves the right
not to accept tendered unregistered senior securities from any tendering Holder
if Viacom or Viacom International determines, in their sole and absolute
discretion, that their ability to proceed with the Exchange Offer would be
impaired by a pending or threatened action or proceeding with respect to the
Exchange Offer or that such acceptance could result in a violation of applicable
securities laws.
For purposes of the Exchange Offer, Viacom shall be deemed to have
accepted validly tendered unregistered senior securities when, as and if Viacom
has given oral or written notice thereof to the applicable Exchange Agent. If
any tendered unregistered senior securities are not accepted for exchange
pursuant to the Exchange Offer for any reason, such unaccepted or non-exchanged
unregistered senior securities will be returned at the address shown below or at
a different address as may be indicated herein under "Special Delivery
Instructions," without expense to the tendering Holder thereof, (or, in the case
of tender by book-entry transfer into the Exchange Agent's account at the
book-entry transfer facility
7
pursuant to the book-entry transfer procedures described in the Prospectus under
the "The Exchange Offer--Book-Entry Transfer," such non-exchanged senior
securities will be credited to an account maintained with such book-entry
transfer facility) as promptly as practicable after the expiration or
termination of the Exchange Offer.
The undersigned understands and acknowledges that Viacom reserves the
right in its sole discretion to purchase or make offers for any unregistered
senior securities that remain outstanding subsequent to the Expiration Date or,
as set forth in the Prospectus under the caption "The Exchange Offer--Expiration
Date; Extensions; Amendment; Termination," to terminate the Exchange Offer and,
to the extent permitted by applicable law, purchase unregistered senior
securities in the open market, in privately negotiated transactions or
otherwise. The terms of any such purchases or offers could differ from the terms
of the Exchange Offer.
The undersigned understands that tenders of unregistered senior
securities pursuant to the procedures described under the caption "The Exchange
Offer--Procedures for Tendering" in the Prospectus and in the instructions
hereto will constitute a binding agreement between the undersigned and Viacom
upon the terms and subject to the conditions of the Exchange Offer. The
undersigned also agrees that acceptance of any tendered unregistered senior
securities by Viacom and the issuance of exchange senior securities in exchange
therefor shall constitute performance in full by Viacom and Viacom International
of their respective obligations under the Exchange Offer and Registration Rights
Agreement and that, upon the issuance of the exchange senior securities, Viacom
and Viacom International will have no further obligations or liabilities
thereunder (except in certain limited circumstances).
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns. This tender may be withdrawn only in accordance with the procedures set
forth in the Prospectus and in this Letter of Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
exchange senior securities pursuant to the Exchange Offer hereby acknowledges
and agrees that upon the receipt of notice by Viacom of the happening of any
event that makes any statement in the Prospectus untrue in any material respect
or that requires the making of any changes in the Prospectus in order to make
the statements therein not misleading (which notice Viacom agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until Viacom has amended or supplemented the Prospectus to correct
such misstatement or omission and has furnished copies of the amended or
supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions,"
please issue the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged, in the
name(s) of the undersigned (or in either such event in the case of unregistered
senior securities tendered by DTC, Euroclear or Clearstream Luxembourg, by
credit to the respective account at DTC, Euroclear or Clearstream Luxembourg).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please send the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged (and
accompanying documents, as appropriate) to the undersigned at the address shown
below the undersigned's signatures, unless, in either event, tender is being
made through DTC, Euroclear or Clearstream Luxembourg. In the event that both
"Special Registration Instructions" and "Special Delivery Instructions" are
completed, please issue the certificates representing the exchange senior
securities issued in exchange for the unregistered senior securities accepted
for exchange and
8
return any unregistered senior securities not tendered or not exchanged in the
name(s) of, and send said certificates to, the person(s) so indicated. The
undersigned recognizes that Viacom has no obligations pursuant to the "Special
Registration Instructions" and "Special Delivery Instructions" to transfer any
unregistered senior securities from the name of the registered holder(s) thereof
if Viacom does not accept for exchange any of the unregistered senior securities
so tendered.
Holders who wish to tender the unregistered senior securities and (1)
whose unregistered senior securities are not immediately available or (2) who
cannot deliver their unregistered senior securities, this Letter of Transmittal
or any other documents required hereby to the Exchange Agents prior to the
Expiration Date may tender their unregistered senior securities according to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer--Guaranteed Delivery Procedures." (See Instruction 1.)
9
PLEASE SIGN HERE WHETHER OR NOT TENDER IS TO BE MADE PURSUANT TO THE
GUARANTEED DELIVERY PROCEDURES.
(To Be Completed by All Tendering Holders of Unregistered Senior Securities
Regardless of Whether Unregistered Senior Securities Are
Being Physically Delivered Herewith)
This Letter of Transmittal must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear(s) on
certificate(s) of unregistered senior securities or, if tendered by a
participant in DTC, Euroclear or Clearstream Luxembourg, exactly as such
participant's name appears on its security position listing it as the owner of
unregistered senior securities, or by person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted with this Letter of
Transmittal. If the unregistered senior securities to which this Letter of
Transmittal relates are held of record by two or more joint Holders, then all
such Holders must sign this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, then such person
must set forth his or her full title below under "Capacity" and submit evidence
satisfactory to Viacom of such person's authority to so act. (See Instruction
6.) If the signature appearing below is not the registered Holder(s) of the
unregistered senior securities, then the registered Holder(s) must sign a valid
proxy.
x________________________________ Date: ________________________
x________________________________ Date: ________________________
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): ______________________________ Address: _____________________
______________________________
(Please Print) (Including Zip Code)
Capacity(ies): Area Code and Telephone No.:
Tax Identification or Social Security Number(s).:
[Complete Substitute Form W-9 below.]
10
SIGNATURE GUARANTEE
(See Instruction 1 herein)
Certain Signatures Must Be Guaranteed by an Eligible Institution
--------------------------------------------------------------------------
(Name of Eligible Institution Guaranteeing Signatures)
--------------------------------------------------------------------------
(Address (including zip code) and Telephone Number
(including area code) of Firm)
--------------------------------------------------------------------------
(Authorized Signatures)
--------------------------------------------------------------------------
(Printed Name)
--------------------------------------------------------------------------
(Title)
Date:
11
- -------------------------------------------------------------------------------------------------------------------------
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 7 herein) (See Instruction 7 herein)
To be completed ONLY if certificates for unregistered To be completed ONLY if certificates for unregistered
senior securities in a principal amount not tendered or senior securities in a principal amount not tendered or
not accepted for exchange are to be issued in the name of, not accepted for exchange are to be sent to, or the
or the exchange senior securities issued pursuant to the exchange senior securities issued pursuant to the
Exchange Offer are to be issued to the order of, someone Exchange Offer are to be sent to someone other than the
other than the person or persons whose signature(s) person or persons whose signature(s) appear(s) within
appear(s) within this Letter of Transmittal or issued to this Letter of Transmittal, or to an address different
an address different from, that shown in the box entitled from, that shown in the box entitled "Description of
"Description of unregistered senior securities" within unregistered senior securities" within this Letter of
this Letter of Transmittal, or if exchange senior Transmittal, or to be credited to an account maintained
securities tendered by book-entry transfer that are not at DTC, Euroclear or Clearstream Luxembourg other than
accepted for purchase are to be credited to an account the account indicated above.
maintained at DTC, Euroclear or Clearstream Luxembourg
other than the account indicated above.
Name: Name:
------------------------------------------------ ------------------------------------------------
(Please Print) (Please Print)
Address: Address:
--------------------------------------------- ---------------------------------------------
(Please Print) (Please Print)
- ----------------------------------------------------- -----------------------------------------------------
(Zip Code) (Zip Code)
- ----------------------------------------------------- -----------------------------------------------------
Tax Identification or Social Security Number Tax Identification or Social Security Number
(See Substitute Form W-9 herein) (See Substitute Form W-9 herein)
- -------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer and the Solicitation
1. Guarantee of Signatures. Signatures on this Letter of Transmittal
(or copy hereof) or a notice of withdrawal, as the case may be, must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act
(an "Eligible Institution") unless the unregistered senior securities tendered
pursuant thereto are tendered (i) by a registered Holder (including any
participant in DTC, Euroclear or Clearstream Luxembourg whose name appears on a
security position listing as the owner of unregistered senior securities) who
has not completed the box set forth herein entitled "Special Registration
Instructions" or "Special Delivery Instructions" of this Letter of Transmittal
or (ii) for the account of an Eligible Institution.
12
2. Delivery of this Letter of Transmittal and Unregistered Senior
Securities. Certificates for the physically tendered unregistered senior
securities (or a confirmation of a book-entry transfer to the Exchange Agent at
DTC, Euroclear or Clearstream Luxembourg of all unregistered senior securities
tendered electronically), as well as, in the case of physical delivery of
unregistered senior securities, a properly completed and duly executed copy of
this Letter of Transmittal or facsimile hereof and any other documents required
by this Letter of Transmittal must be received by the applicable Exchange Agent
at its address set forth herein prior to 5:00 P.M. New York City time, on the
Expiration Date. The method of delivery of the tendered unregistered senior
securities, this Letter of Transmittal and all other required documents, or
book-entry transfer and transmission of an Agent's Message by a DTC, Euroclear
or Clearstream Luxembourg participant, to the applicable Exchange Agent are at
the election and risk of the Holder and, except as otherwise provided below, the
delivery will be deemed made only when actually received by the applicable
Exchange Agent. Instead of delivery by mail, it is recommended that the Holder
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to assure timely delivery. No Letter of Transmittal or unregistered
senior securities should be sent to Viacom, DTC, Euroclear or Clearstream
Luxembourg.
The Exchange Agent will make a request to establish an account with
respect to the unregistered senior securities at DTC, Euroclear or Clearstream
Luxembourg for purposes of the Exchange Offer promptly after receipt of the
Prospectus, and any financial institution that is a participant in DTC,
Euroclear or Clearstream Luxembourg may make book-entry delivery of unregistered
senior securities by causing DTC, Euroclear or Clearstream, Luxembourg, as the
case may be, to transfer such unregistered senior securities into the Exchange
Agent's account at DTC, Euroclear or Clearstream Luxembourg, as the case may be,
in accordance with the relevant entity's procedures for transfer. However,
although delivery of unregistered senior securities may be effected through
book-entry transfer at DTC, Euroclear or Clearstream Luxembourg, an Agent's
Message (as defined in the next paragraph) in connection with a book-entry
transfer and any other required documents, must, in any case, be transmitted to
and received by the Exchange Agent at the address specified on the cover page of
the Letter of Transmittal on or prior to the Expiration Date or the guaranteed
delivery procedures described below must be complied with.
A Holder may tender unregistered senior securities that are held
through DTC by transmitting its acceptance through DTC's Automatic Tender Offer
Program, for which the transaction will be eligible, and DTC will then edit and
verify the acceptance and send an Agent's Message to the Exchange Agent for its
acceptance. The term "Agent's Message" means a message transmitted by DTC to,
and received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
each participant in DTC tendering the unregistered senior securities and that
such participant has received the Letter of Transmittal and agrees to be bound
by the terms of the Letter of Transmittal and the Company may enforce such
agreement against such participant. Delivery of an Agent's Message will also
constitute an acknowledgment from the tendering DTC participant that the
representations and warranties set forth on pages 6 and 7 of this Letter of
Transmittal are true and correct.
Holders of unregistered senior securities held through Euroclear or
Clearstream Luxembourg, are required to use book-entry transfer pursuant to the
standard operating procedures of Euroclear or Clearstream Luxembourg, as the
case may be, to accept the Exchange Offer and to tender their unregistered
senior securities. A computer-generated message must be transmitted to Euroclear
or Clearstream Luxembourg, as the case may be, in lieu of a Letter of
Transmittal, in order to tender the unregistered senior securities in the
Exchange Offer.
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available or (ii) who
cannot deliver their unregistered senior securities, this Letter of Transmittal
or any other documents required hereby to the applicable Exchange Agent prior to
the Expiration Date, or who cannot complete the procedure for book-entry
transfer on a timely basis must
13
tender their unregistered senior securities and follow the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined above) or
pursuant to the DTC, Euroclear or Clearstream Luxembourg standard operating
procedures; (ii) prior to the Expiration Date, the applicable Exchange Agent
must have received from the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder of the unregistered
senior securities, the certificate number or numbers of such unregistered senior
securities and the principal amount of unregistered senior securities tendered,
stating that the tender is being made thereby and guaranteeing that within five
Business Days after the Expiration Date, this Letter of Transmittal (or copy
thereof) together with the certificate(s) representing the unregistered senior
securities (or a confirmation of electronic mail delivery or book-entry delivery
into the Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg)
and any of the required documents will be deposited by the Eligible Institution
with the applicable Exchange Agent and (iii) such properly completed and
executed Letter of Transmittal (or copy thereof), as well as all other documents
required by this Letter of Transmittal and the certificate(s) representing all
tendered unregistered senior securities in proper form for transfer or a
confirmation of electronic mail delivery or book-entry delivery into the
Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg, must be
received by the applicable Exchange Agent within five Business Days after the
Expiration Date, all as provided in the Prospectus under the caption "The
Exchange Offer--Guaranteed Delivery Procedures." Any Holder of unregistered
senior securities who wishes to tender his unregistered senior securities
pursuant to the guaranteed delivery procedures described above must ensure that
the applicable Exchange Agent receives the Notice of Guaranteed Delivery prior
to 5:00 P.M., New York City time, on the Expiration Date. Upon request to the
Exchange Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish
to tender their unregistered senior securities according to the guaranteed
delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered unregistered senior securities
or this Letter of Transmittal will be determined by Viacom in its sole
discretion, which determination will be final and binding. All tendering
Holders, by execution of this Letter of Transmittal (or copy hereof), shall
waive any right to receive notice of the acceptance of the unregistered senior
securities for exchange. Viacom reserves the absolute right to reject any and
all unregistered senior securities or Letter of Transmittal not properly
tendered or any tenders Viacom's acceptance of which would, in the opinion of
counsel for Viacom, be unlawful. Viacom also reserves the absolute right to
waive any defects, irregularities or conditions of tender as to particular
unregistered senior securities. Viacom's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of unregistered senior
securities must be cured within such time as Viacom shall determine. Although
Viacom intends to notify Holders of defects or irregularities with respect to
tenders of unregistered senior securities, neither Viacom, the Exchange Agents
nor any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of unregistered senior securities, nor
shall any of them incur any liability for failure to give such notification.
Tenders of unregistered senior securities will not be deemed to have been made
until such defects or irregularities have been cured or waived. Any unregistered
senior securities received by the Exchange Agents that are not properly tendered
and as to which the defects or irregularities have not been cured or waived will
be returned by the Exchange Agents to the tendering Holders of unregistered
senior securities, unless otherwise provided in this Letter of Transmittal, as
soon as practicable following the Expiration Date.
3. Inadequate Space. If the space provided is inadequate, the
certificate numbers and/or the number of the unregistered senior securities
should be listed on a separate signed schedule attached hereto.
14
4. Tender by Holder. Except in limited circumstances, only a registered
Holder of unregistered senior securities or a Euroclear, Clearstream Luxembourg,
or DTC participant listed on a securities position listing furnished by
Euroclear, Clearstream Luxembourg, or DTC with respect to the unregistered
senior securities may tender its unregistered senior securities in the Exchange
Offer. Any beneficial owner of unregistered senior securities who is not the
registered Holder and is not a Euroclear, Clearstream Luxembourg, or DTC
participant and who wishes to tender should arrange with such registered holder
to execute and deliver this Letter of Transmittal on such beneficial owner's
behalf or must, prior to completing and executing this Letter of Transmittal and
delivering his, her or its unregistered senior securities, either make
appropriate arrangements to register ownership of the unregistered senior
securities in such beneficial owner's name or obtain a properly completed bond
power from the registered holder or properly endorsed certificates representing
such unregistered senior securities.
5. Partial Tenders; Withdrawals. Tenders of unregistered senior
securities will be accepted only in integral multiples of $1,000. If less than
the entire principal amount of any unregistered senior securities is tendered,
the tendering Holder should fill in the principal amount tendered in the third
column of the chart entitled "Description of Unregistered Senior Securities."
The entire principal amount of unregistered senior securities delivered to the
Exchange Agents will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount of all unregistered senior securities is not
tendered, unregistered senior securities for the principal amount of
unregistered senior securities not tendered and a certificate or certificates
representing exchange senior securities issued in exchange of any unregistered
senior securities accepted will be sent to the Holder at his or her registered
address, unless a different address is provided in the appropriate box on this
Letter of Transmittal or unless tender is made through DTC, Euroclear or
Clearstream Luxembourg, promptly after the unregistered senior securities are
accepted for exchange.
Except as otherwise provided herein, tenders of unregistered senior
securities may be withdrawn at any time prior to the Expiration Date. To
withdraw a tender of unregistered senior securities in the Exchange Offer, a
written or facsimile transmission notice of withdrawal must be received by the
Exchange Agent at its address set forth herein prior to the Expiration Date. Any
such notice of withdrawal must (1) specify the name of the person having
deposited the unregistered senior securities to be withdrawn (the "Depositor"),
(2) identify the unregistered senior securities to be withdrawn (including the
certificate number or numbers and principal amount of such unregistered senior
securities, or, in the case of unregistered senior securities transferred by
book-entry transfer the name and number of the account at Euroclear, Clearstream
Luxembourg, or DTC to be credited), (3) be signed by the Depositor in the same
manner as the original signature on the Letter of Transmittal by which such
unregistered senior securities were tendered (including any required signature
guarantees) or be accompanied by documents of transfer sufficient to have the
Registrar with respect to the unregistered senior securities register the
transfer of such unregistered senior securities into the name of the person
withdrawing the tender and (4) specify the name in which any such unregistered
senior securities are to be registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by Viacom, whose determination shall
be final and binding on all parties. Any unregistered senior securities so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no exchange senior securities will be issued with respect
thereto unless the unregistered senior securities so withdrawn are validly
re-tendered. Any unregistered senior securities which have been tendered but
which are not accepted for exchange by Viacom will be returned to the Holder
thereof without cost to such Holder as soon as practicable after withdrawal,
rejection of tender or termination of the Exchange Offer. Properly withdrawn
unregistered senior securities may be re-tendered by following one of the
procedures described in the Prospectus under "The Exchange Offer--Procedures for
Tendering" at any time prior to the Expiration Date.
15
6. Signatures on the Letter of Transmittal; Bond Powers and
Endorsements. If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) of the unregistered senior securities tendered hereby, the
signature must correspond with the name(s) as written on the face of the
unregistered senior securities without alteration, enlargement or any change
whatsoever.
If any of the unregistered senior securities tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If a number of unregistered senior securities registered in different
names are tendered, it will be necessary to complete, sign and submit as many
copies of this Letter of Transmittal as there are different registrations of
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) (which term, for the purposes described herein, shall
include a book-entry transfer facility whose name appears on the security
listing as the owner of the unregistered senior securities) of unregistered
senior securities tendered and the certificate(s) for exchange senior securities
issued in exchange therefor is to be issued (or any untendered principal amount
of unregistered senior securities is to be reissued) to the registered Holder,
such Holder need not and should not endorse any tendered Outstanding Note, nor
provide a separate bond power. In any other case, such Holder must either
properly endorse the unregistered senior securities tendered or transmit a
properly completed separate bond power with this Letter of Transmittal, with the
signatures on the endorsement or bond power guaranteed by an Eligible
Institution.
If this Letter of Transmittal (or copy hereof) is signed by a person
other than the registered Holder(s) of unregistered senior securities listed
therein, such unregistered senior securities must be endorsed or accompanied by
properly completed bond powers which authorize such person to tender the
unregistered senior securities on behalf of the registered Holder, in either
case signed as the name of the registered Holder or Holders appears on the
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) or any unregistered
senior securities or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, or officers of corporations or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by Viacom, evidence satisfactory to
Viacom of their authority to so act must be submitted with this Letter of
Transmittal.
Endorsements on unregistered senior securities or signatures on bond
powers required by this Instruction 6 must be guaranteed by an Eligible
Institution.
7. Special Registration and Delivery Instructions. Tendering Holders
should indicate, in the applicable spaces, the name and address to which
exchange senior securities or substitute unregistered senior securities for
principal amounts not tendered or not accepted for exchange are to be issued or
sent, if different from the name and address of the person signing this Letter
of Transmittal (or in the case of tender of the unregistered senior securities
through DTC, Euroclear or Clearstream Luxembourg, if different from the account
maintained at DTC, Euroclear or Clearstream Luxembourg indicated above). In the
case of issuance in a different name, the taxpayer identification or social
security number of the person named must also be indicated.
8. Transfer Taxes. Viacom will pay all transfer taxes, if any,
applicable to the exchange of unregistered senior securities pursuant to the
Exchange Offer. If, however, certificates representing exchange senior
securities or unregistered senior securities for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered Holder of the
unregistered senior securities tendered hereby, or if tendered unregistered
senior securities are registered in the name of any person other than the person
signing this Letter of
16
Transmittal, or if a transfer tax is imposed for any reasons other than the
exchange of unregistered senior securities pursuant to the Exchange Offer, then
the amount of any such transfer taxes (whether imposed on the registered Holder
or any other person) will be payable by the tendering Holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering Holder.
Except as provided in this Instruction 8, it will not be necessary for
transfer tax stamps to be affixed to the unregistered senior securities listed
in this Letter of Transmittal.
9. Waiver of Conditions. Viacom reserves the right, in its sole
discretion, to amend, waive or modify specified conditions in the Exchange Offer
in the case of any unregistered senior securities tendered.
10. Mutilated, Lost, Stolen or Destroyed Unregistered Senior
Securities. Any tendering Holder whose unregistered senior securities have been
mutilated, lost, stolen or destroyed should contact the applicable Exchange
Agent at the address indicated herein for further instruction.
11. Requests for Assistance or Additional Copies. Questions and
requests for assistance and requests for additional copies of the Prospectus or
this Letter of Transmittal may be directed to the applicable Exchange Agent at
the address specified in the Prospectus. Holders may also contact their broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
17
IMPORTANT TAX INFORMATION
The Holder is required to give the applicable Exchange Agent the social
security number or employer identification number of the Holder of the
unregistered senior securities. If the unregistered senior securities are in
more than one name or are not in the name of the actual owner, consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidance on which number to report.
TO BE COMPLETED BY ALL TENDERING HOLDERS
- -----------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: VIACOM INC.
- -----------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN IN THE
Form W-9 BOX AT RIGHT AND CERTIFY BY SIGNING AND
DATING BELOW. --------------------------
Social Security Number(s)
or
-----------------------
Employer Identification Number(s)
- -----------------------------------------------------------------------------------------------------------------------
Part 2 - Certification - Under Part 3 -
Department of the Treasury Penalties of Perjury, I certify that:
Internal Revenue Service [ ] Check if Awaiting TIN
(1) The number shown on this form
Payer's Request for Taxpayer is my correct Taxpayer
Identification Number ("TIN") Identification Number (or I am
waiting for a number to be issued
to me), and
(2) I am NOT subject to back-up
withholding because: (a) I am
exempt from backup withholding, or
(b) I have not been notified by
the Internal Revenue Service
("IRS") that I am subject to
back-up withholding as a result of
failure to report all interest or
dividends, or (c) the IRS has
notified me that I am no longer
subject to back-up withholding.
- -----------------------------------------------------------------------------------------------------------------------
Certification Instructions - You must cross out item (2) above if you
have been notified by the IRS that you are currently subject to back-up
withholding because of underreporting interest or dividends on your tax
return.
Sign Here SIGNATURE: DATE:
------------------------------------ --------------------
- ---------------------------------------- ------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU UNDER THE SENIOR
SECURITES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
18
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Obtain a Number:
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
Payees Exempt from Backup Withholding:
Payees specifically exempted from backup withholding on ALL payments include the
following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a) or an individual
retirement plan.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
o An international organization or any agency of or instrumentality
thereof.
o A registered dealer in securities or commodities registered in the
U.S. or a possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of
1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to withholding under section
1441.
o Payments to partnerships not engaged in a trade or business in the
U.S. and which have at least one nonresident partner.
o Payments of patronage dividends where the amount renewed is not paid
in money.
o Payments made by certain foreign nations.
o Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
o Payments of interest on obligations issued by individuals. Note: You
may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the
payee.
o Payments of tax-exempt interest (including exempt-interest dividends
in section 852).
o Payments described in section 6049(b)(5) to non-resident alien.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding.
FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER,
WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE
PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE
FORM.
Certain payments other than interest, dividends and patronage dividends that are
not subject to information reporting are also not subject to backup withholding.
For details, see the regulations under sections 6041, 6041A(a), 6045 and 6050A.
Privacy Act Notice. Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividends, and certain other payments to a payee who does not furnish
a taxpayer identification number to a payee. Certain penalties may also apply.
Penalties:
(1) Penalty for Failure to Furnish Taxpayer Identification Number. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) Civil Penalty for False Information with Respect to Withholding. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
19
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payer.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employee identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
- -----------------------------------------------------------------------------------------------------------------------
For this type of account: Give the SOCIAL For this type of account: Give the SOCIAL
SECURITY number of-- SECURITY number of--
- -----------------------------------------------------------------------------------------------------------------------
1. An individual's The individual 8. Sole The owner 4
account proprietorship
account
- -----------------------------------------------------------------------------------------------------------------------
2. Two or more The actual owner of the 9. A valid trust, The legal entity (Do not
individuals (joint account or, if combined estate, or pension furnish the identifying
account) funds, any one of the trust number of the personal
individuals 1 representatives or trustee
unless the legal entity
itself is not designated in
the account title.)5
- -----------------------------------------------------------------------------------------------------------------------
3. Husband and wife The actual owner of the 10. Corporate The corporation
(joint account) account or, if joint account
funds, either person 1
- -----------------------------------------------------------------------------------------------------------------------
4. Custodian account The minor 2 11. Religious, The organization
of a minor (Uniform charitable, or
Gift to Minors Act) educational
organization account
- -----------------------------------------------------------------------------------------------------------------------
5. Adult and minor The adult or, if the minor 12. Partnership The partnership
(joint account) is the only contributor, account held in the
the minor 1 name of the business
- -----------------------------------------------------------------------------------------------------------------------
6. Account in the The ward, minor or 13. Association, The organization
name of guardian or incompetent person 3 club or other
committee for a tax-exempt
designated ward, organization
minor, or incompetent
person
- -----------------------------------------------------------------------------------------------------------------------
7. a. The usual The grantor-trustee 1 14. A broker or The broker or nominee
revocable savings registered nominee
trust account
(grantor is also
trustee)
- -----------------------------------------------------------------------------------------------------------------------
7. b. So-called The actual owner 1 15. Account with The public entity
trust account that is the Department of
not a legal or valid Agriculture in the
trust under State name of a public
law entity (such as a
State or
local
government,
school
district, or
prison) that
receives
agricultural
program
payments.
- -----------------------------------------------------------------------------------------------------------------------
- --------
1 List first and circle the name of the person whose number you furnish.
2 Circle the minor's name and furnish the minor's Social Security number.
3 Circle the ward's, minor's or incompetent person's name and furnish such
person's Social Security number.
4 Show the name of the Owner.
5 List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
20
(DO NOT WRITE IN SPACE BELOW)
- ----------------------------------------------------------------------------------------------------------------
Certificate Surrendered Unregistered Senior Securities Unregistered Senior Securities
Tendered Accepted
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Delivery Prepared by Checked by Date
----------------- --------------- ----------------
- ----------------------------------------------------------------------------------------------------------------
21
The Exchange Agents for the Exchange Offer are:
Principal Exchange Agent: Luxembourg Exchange Agent:
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, NY 10005 L-2955 Luxembourg
Attn: Agency & Trust Services Attn: Corporate Trust and Agencies
Telephone: (800) 422-2066 Telephone: (352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (352) 47 97 73 951
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY ADDITIONAL
INFORMATION, YOU MAY CONTACT THE PRINCIPAL EXCHANGE AGENT BY TELEPHONE AT (800)
422-2066, OR BY FACSIMILE AT (212) 825-3483 OR THE LUXEMBOURG EXCHANGE AGENT BY
TELEPHONE AT (352) 47 97 3933, OR BY FACSIMILE AT (352) 47 97 73 951.
ALL UNREGISTERED SENIOR SECURITIES MUST BE TENDERED BY BOOK-ENTRY TRANSFER IN
ACCORDANCE WITH THE STANDARD OPERATING PROCEDURES OF DTC, EUROCLEAR OR
CLEARSTREAM LUXEMBOURG. HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE
SENIOR SECURITIES FOR THEIR UNREGISTERED SENIOR SECURITIES PURSUANT TO THE
EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR UNREGISTERED SENIOR
SECURITIES TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG, AS THE CASE MAY BE,
PRIOR TO THE EXPIRATION DATE OR PROVIDE NOTICE OF GUARANTEED DELIVERY TO THE
APPLICABLE EXCHANGE AGENT AS DESCRIBED HEREIN.
EXHIBIT 99.2
VIACOM INC.
FORM OF LETTER OF TRANSMITTAL FOR THE
OFFER TO EXCHANGE
Unregistered 6.40% Senior Notes due 2006
($3,075,000 aggregate principal amount outstanding issued January 17, 2001)
for
6.40% Senior Notes due 2006
that have been registered under the Securities Act of 1933
and
Unregistered 7.70% Senior Notes due 2010
($1,000,000 aggregate principal amount outstanding issued January 17, 2001)
for
7.70% Senior Notes due 2010
that have been registered under the Securities Act of 1933
and
Unregistered 7.875% Senior Debentures due 2030
($200,000 aggregate principal amount outstanding issued January 17, 2001)
for
7.875% Senior Debentures due 2030
that have been registered under the Securities Act of 1933
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2001
(THE "EXPIRATION DATE") UNLESS THE EXCHANGE OFFER IS EXTENDED BY VIACOM IN ITS
SOLE DISCRETION.
TENDERS OF UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Deliver To:
Principal Exchange Agent: Luxembourg Exchange Agent:
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Attn: Agency & Trust Services Attn: Corporate Trust and Agencies
Telephone: (800) 422-2066 Telephone: (352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (352) 47 97 73 951
Delivery of this letter of transmittal to an address, or transmission via
telegram, telex or facsimile, other than to the exchange agents as set forth
above (the "Exchange Agents") will not constitute a valid delivery. The method
of delivery of all documents, including certificates, is at the risk of the
holder. If delivery is by mail, we recommend the use of registered mail with
return receipt requested, properly insured. You should read the instructions
accompanying this letter of transmittal carefully before you complete this
letter of transmittal.
The undersigned acknowledges that he or she has received the
Prospectus, dated , 2001 (the "Prospectus"), of Viacom Inc. ("Viacom") and
Viacom International Inc. ("Viacom International") and this letter of
transmittal and the instructions hereto (the "Letter of Transmittal"), which
together constitute Viacom's offer (the "Exchange Offer") to exchange up to
$3,075,000 aggregate principal amount of 6.40% senior notes due 2006, which are
registered under the Securities Act of 1933, for its outstanding unregistered
6.40% senior notes due 2006 issued on January 17, 2001, $1,000,000 aggregate
principal amount of 7.70% senior notes due 2010, which are registered under the
Securities Act of 1933, for its outstanding unregistered 7.70% senior notes due
2010 issued on January 17, 2001, and $200,000 aggregate principal amount of
7.875% senior debentures due 2030, which are registered under the Securities Act
of 1933, for its outstanding unregistered 7.875% senior debentures due 2030
issued on January 17, 2001, pursuant to a Registration Statement of which the
Prospectus is a part. The unregistered senior securities are unconditionally
guaranteed as to payment of principal and interest by Viacom International Inc.,
a wholly owned subsidiary of Viacom.
The outstanding unregistered 6.40% senior notes due 2006 have CUSIP
numbers U9222XAA5 or 925524AK6. The outstanding 7.70% senior notes due 2010 have
CUSIP numbers U9222XAB3 or 925524AL4. The outstanding unregistered 7.875% senior
debentures due 2030 have CUSIP numbers U9222XAC1 or 925524AM2.
The term "Expiration Date" shall mean 5:00 p.m. New York City time
on , 2001, unless Viacom, in its sole discretion, extends the Exchange
Offer, in which case the term shall mean the latest date and time to which the
Exchange Offer is extended. Whenever we refer to the unregistered senior notes
due 2006, the unregistered senior notes due 2010 and the unregistered senior
debentures, we will refer to them as the "unregistered senior securities."
Whenever we refer to the exchange senior notes due 2006, the exchange senior
notes due 2010 and the exchange senior debentures, we will refer to them as the
"exchange senior securities." All other terms used but not defined herein have
the meaning given to them in the Prospectus.
This Letter of Transmittal is to be used if (1) certificates
representing unregistered senior securities are to be physically delivered to
the Exchange Agents by Holders (as defined below), (2) the unregistered senior
securities are to be tendered by book-entry transfer pursuant to the procedures
set forth in the Prospectus under "The Exchange Offer--Book-Entry Transfer" or
(3) tender of the unregistered senior securities is to be made by Holders
according to the guaranteed delivery procedures set forth in the Prospectus
under "The Exchange Offer--Guaranteed Delivery Procedures." Delivery of this
Letter of Transmittal and any other required documents must be made to the
Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG DOES
NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "Holder" as used herein means any person in whose name
unregistered senior securities are registered on the books of Viacom or any
other person who has obtained a properly completed bond power from the
registered holder.
Any Holder of unregistered senior securities who wishes to tender his,
her or its unregistered senior securities must, prior to the Expiration Date,
either: (a) complete, sign and deliver this Letter of Transmittal, or a
facsimile thereof, to the Exchange Agent, in person or to the address or
facsimile number set forth above and tender (and not withdraw) his, her or its
unregistered senior securities, or (b) if a tender of unregistered senior
securities is to be made by book-entry transfer to the account maintained by the
Exchange Agent at DTC, Euroclear or Clearstream Luxembourg, confirm such
book-entry transfer, including the delivery of an Agent's Message (a "Book-Entry
Confirmation"), in each case in accordance with the procedures for tendering
described in the Instructions to this Letter of Transmittal.
Holders of unregistered senior securities whose certificates are not
immediately available or who are unable to deliver their certificates or
Book-Entry Confirmation and all other documents required by this Letter of
Transmittal to be delivered to the Exchange Agent on or prior to the Expiration
Date, must tender their unregistered senior securities according to the
guaranteed delivery procedures set forth under the caption "The Exchange
Offer--Guaranteed Delivery Procedures" in the Prospectus. (See Instruction 1.)
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the unregistered senior securities validly tendered
and not withdrawn and the issuance of the exchange senior securities will be
made promptly following the Expiration Date. For the purposes of the Exchange
Offer, Viacom shall be deemed to have accepted for exchange validly tendered
unregistered senior securities when, as and if Viacom has given written notice
thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
11.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR UNREGISTERED
SENIOR SECURITIES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND
COMPLY WITH ALL OF ITS TERMS.
2
Please list below the unregistered senior securities to which this
Letter of Transmittal relates. If the space provided below is inadequate, the
Certificate Numbers and Principal Amounts should be listed on a separate signed
schedule, attached hereto. The minimum permitted tender is $1,000 in principal
amount. All other tenders must be in integral multiples of $1,000.
- -----------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF UNREGISTERED SENIOR SECURITIES
- -----------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) Certificate Number(s) Aggregate Principal
of Holder(s) Type of Security (Attach signed list if
(Please fill in, if blank) Tendered necessary) Amount Tendered
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF UNREGISTERED
SENIOR SECURITIES TENDERED:
- -----------------------------------------------------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED BY DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG TO THE EXCHANGE
AGENT'S ACCOUNT AT DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: _______________________________________
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: _________
Transaction Code No.: ________________________________________________
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities, the Letter of Transmittal
or any other required documents to the applicable Exchange Agent prior to the
Expiration Date, or cannot complete the procedure for book-entry transfer on a
timely basis, may effect a tender according to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange
Offer--Guaranteed Delivery Procedures."
[ ] CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY
DELIVERED TO THE APPLICABLE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Holder(s) of unregistered senior securities: _______________
3
Window Ticket No. (if any): ___________________________________________
Date of Execution of Notice of Guaranteed Delivery: ___________________
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: _________
If Delivered by Book-Entry Transfer: _________________________________
Name of Tendering Institution: ______________________________
Transaction Code No.: _______________________________________
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ________________________________________________________
Address: _____________________________________________________
4
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to Viacom the principal amount of unregistered senior
securities indicated above. Subject to and effective upon the acceptance for
exchange of the principal amount of unregistered senior securities tendered
hereby in accordance with this Letter of Transmittal and the accompanying
instructions, the undersigned sells, assigns and transfers to, or upon the order
of, Viacom all right, title and interest in and to the unregistered senior
securities tendered hereby. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agents its agent and attorney-in-fact (with full knowledge
that the Exchange Agents also act as agents of Viacom and the Principal Exchange
Agent acts as Trustee under the Indentures for the unregistered senior
securities and the exchange senior securities) with respect to the tendered
unregistered senior securities with full power of substitution to (i) deliver
certificates for such unregistered senior securities to Viacom, or transfer
ownership of such unregistered senior securities on the account books maintained
by DTC, Euroclear or Clearstream Luxembourg, as the case may be, together, in
any such case, with all accompanying evidences of transfer and authenticity to,
or upon the order of, Viacom and (ii) present such unregistered senior
securities for transfer on the books of Viacom and receive all benefits and
otherwise exercise all rights of beneficial ownership of such unregistered
senior securities, all in accordance with the terms of the Exchange Offer. The
power of attorney granted in this paragraph shall be deemed irrevocable and
coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, exchange, sell, assign and transfer the
unregistered senior securities tendered hereby and to acquire the exchange
senior securities issuable upon the exchange of the unregistered senior
securities, and that Viacom will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim, when the same are acquired by Viacom. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
upon an interpretation by the staff of the Securities and Exchange Commission
that the exchange senior securities issued in exchange for the unregistered
senior securities pursuant to the Exchange Offer may be offered for sale, resold
and otherwise transferred by holders thereof (other than a broker-dealer who
purchased such unregistered senior securities directly from Viacom for resale
pursuant to Rule 144A, Regulation S or any other available exemption under the
Securities Act or a holder that is an "affiliate" of Viacom or Viacom
International within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such exchange senior securities are acquired by a
non-affiliate in the ordinary course of such holder's business and such holders
have no arrangement or understanding with any person to participate in the
distribution of such exchange senior securities.
The undersigned Holder represents and warrants that
(a) the exchange senior securities acquired pursuant to the Exchange
Offer are being acquired in the ordinary course of business of
the person receiving the exchange senior securities, whether or
not the person is the Holder,
(b) neither the undersigned Holder nor any other recipient of the
exchange senior securities (if different than the Holder) is
engaged in, intends to engage in or has any arrangement or
understanding with any person to participate in the distribution
of the unregistered senior securities or exchange senior
securities,
(c) neither the undersigned Holder nor any other recipient is an
"affiliate" of Viacom or Viacom International within the
meaning of Rule 405 promulgated under the Securities Act
5
or, if such Holder is an affiliate, that such Holder will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable,
(d) if the undersigned is a broker-dealer, it has not entered into
any arrangement or understanding with Viacom or Viacom
International or any "affiliate" of Viacom or Viacom
International (within the meaning of Rule 405 under the
Securities Act) to distribute the exchange senior securities,
(e) if the undersigned is a broker-dealer, the undersigned further
represents and warrants that if the undersigned broker-dealer
will receive exchange senior securities for its own account in
exchange for unregistered senior securities that were acquired as
a result of market-making activities or other trading activities,
the holder will, in connection with any resale of the exchange
senior securities, deliver a prospectus meeting the requirements
of the Securities Act (for which purposes, the delivery of the
Prospectus, as the same may be hereafter supplemented or amended,
shall be sufficient) in connection with any resale of exchange
senior securities received in the Exchange Offer (such a
broker-dealer will not be deemed, solely by reason of such
acknowledgment and prospectus delivery, to admit that it is an
"underwriter" within the meaning of the Securities Act) and
(f) the undersigned Holder is not acting on behalf of any person or
entity that could not truthfully make these representations.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agents or Viacom to be necessary or desirable
to complete the exchange, assignment and transfer of the unregistered senior
securities tendered hereby or transfer of ownership of such unregistered senior
securities on the account books maintained by a book-entry transfer facility.
The undersigned understands and agrees that Viacom reserves the right
not to accept tendered unregistered senior securities from any tendering Holder
if Viacom or Viacom International determines, in their sole and absolute
discretion, that their ability to proceed with the Exchange Offer would be
impaired by a pending or threatened action or proceeding with respect to the
Exchange Offer or that such acceptance could result in a violation of applicable
securities laws.
For purposes of the Exchange Offer, Viacom shall be deemed to have
accepted validly tendered unregistered senior securities when, as and if Viacom
has given oral or written notice thereof to the applicable Exchange Agent. If
any tendered unregistered senior securities are not accepted for exchange
pursuant to the Exchange Offer for any reason, such unaccepted or non-exchanged
unregistered senior securities will be returned at the address shown below or at
a different address as may be indicated herein under "Special Delivery
Instructions," without expense to the tendering Holder thereof, (or, in the case
of tender by book-entry transfer into the Exchange Agent's account at the
book-entry transfer facility pursuant to the book-entry transfer procedures
described in the Prospectus under the "The Exchange Offer--Book-Entry Transfer,"
such non-exchanged senior securities will be credited to an account maintained
with such book-entry transfer facility) as promptly as practicable after the
expiration or termination of the Exchange Offer.
The undersigned understands and acknowledges that Viacom reserves the
right in its sole discretion to purchase or make offers for any unregistered
senior securities that remain outstanding subsequent to the Expiration Date or,
as set forth in the Prospectus under the caption "The Exchange Offer--Expiration
Date; Extensions; Amendment; Termination," to terminate the Exchange Offer and,
to the extent permitted by applicable law, purchase unregistered senior
securities in the open market, in
6
privately negotiated transactions or otherwise. The terms of any such purchases
or offers could differ from the terms of the Exchange Offer.
The undersigned understands that tenders of unregistered senior
securities pursuant to the procedures described under the caption "The Exchange
Offer--Procedures for Tendering" in the Prospectus and in the instructions
hereto will constitute a binding agreement between the undersigned and Viacom
upon the terms and subject to the conditions of the Exchange Offer. The
undersigned also agrees that acceptance of any tendered unregistered senior
securities by Viacom and the issuance of exchange senior securities in exchange
therefor shall constitute performance in full by Viacom and Viacom International
of their respective obligations under the Exchange Offer and Registration Rights
Agreement and that, upon the issuance of the exchange senior securities, Viacom
and Viacom International will have no further obligations or liabilities
thereunder (except in certain limited circumstances).
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns. This tender may be withdrawn only in accordance with the procedures set
forth in the Prospectus and in this Letter of Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
exchange senior securities pursuant to the Exchange Offer hereby acknowledges
and agrees that upon the receipt of notice by Viacom of the happening of any
event that makes any statement in the Prospectus untrue in any material respect
or that requires the making of any changes in the Prospectus in order to make
the statements therein not misleading (which notice Viacom agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until Viacom has amended or supplemented the Prospectus to correct
such misstatement or omission and has furnished copies of the amended or
supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions,"
please issue the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged, in the
name(s) of the undersigned (or in either such event in the case of unregistered
senior securities tendered by DTC, Euroclear or Clearstream Luxembourg, by
credit to the respective account at DTC, Euroclear or Clearstream Luxembourg).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please send the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged (and
accompanying documents, as appropriate) to the undersigned at the address shown
below the undersigned's signatures, unless, in either event, tender is being
made through DTC, Euroclear or Clearstream Luxembourg. In the event that both
"Special Registration Instructions" and "Special Delivery Instructions" are
completed, please issue the certificates representing the exchange senior
securities issued in exchange for the unregistered senior securities accepted
for exchange and return any unregistered senior securities not tendered or not
exchanged in the name(s) of, and send said certificates to, the person(s) so
indicated. The undersigned recognizes that Viacom has no obligations pursuant to
the "Special Registration Instructions" and "Special Delivery Instructions" to
transfer any unregistered senior securities from the name of the registered
holder(s) thereof if Viacom does not accept for exchange any of the unregistered
senior securities so tendered.
Holders who wish to tender the unregistered senior securities and (1)
whose unregistered senior securities are not immediately available or (2) who
cannot deliver their unregistered senior securities, this Letter of Transmittal
or any other documents required hereby to the Exchange Agents prior to the
Expiration Date may tender their unregistered senior securities according to the
guaranteed delivery procedures set
7
forth in the Prospectus under the caption "The Exchange Offer--Guaranteed
Delivery Procedures." (See Instruction 1.)
8
PLEASE SIGN HERE WHETHER OR NOT TENDER IS TO BE MADE PURSUANT TO THE
GUARANTEED DELIVERY PROCEDURES.
(To Be Completed by All Tendering Holders of Unregistered Senior Securities
Regardless of Whether Unregistered Senior Securities Are Being Physically
Delivered Herewith)
This Letter of Transmittal must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear(s) on
certificate(s) of unregistered senior securities or, if tendered by a
participant in DTC, Euroclear or Clearstream Luxembourg, exactly as such
participant's name appears on its security position listing it as the owner of
unregistered senior securities, or by person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted with this Letter of
Transmittal. If the unregistered senior securities to which this Letter of
Transmittal relates are held of record by two or more joint Holders, then all
such Holders must sign this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, then such person
must set forth his or her full title below under "Capacity" and submit evidence
satisfactory to Viacom of such person's authority to so act. (See Instruction
6.) If the signature appearing below is not the registered Holder(s) of the
unregistered senior securities, then the registered Holder(s) must sign a valid
proxy.
x Date:
---------------------------------- -----------------------
x Date:
---------------------------------- -----------------------
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): Address:
------------------------------- ----------------------
------------------------------
(Please Print) (Including Zip Code)
Capacity(ies): Area Code and Telephone No.:
Tax Identification or Social Security Number(s).:
[Complete Substitute Form W-9 below.]
9
SIGNATURE GUARANTEE
(See Instruction 1 herein)
Certain Signatures Must Be Guaranteed by an Eligible Institution
--------------------------------------------------------------------------
(Name of Eligible Institution Guaranteeing Signatures)
--------------------------------------------------------------------------
(Address (including zip code) and Telephone Number
(including area code) of Firm)
--------------------------------------------------------------------------
(Authorized Signatures)
--------------------------------------------------------------------------
(Printed Name)
--------------------------------------------------------------------------
(Title)
Date:
10
- -------------------------------------------------------------------------------------------------------------------------
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 7 herein) (See Instruction 7 herein)
To be completed ONLY if certificates for unregistered To be completed ONLY if certificates for unregistered
senior securities in a principal amount not tendered or senior securities in a principal amount not tendered or
not accepted for exchange are to be issued in the name of, not accepted for exchange are to be sent to, or the
or the exchange senior securities issued pursuant to the exchange senior securities issued pursuant to the
Exchange Offer are to be issued to the order of, someone Exchange Offer are to be sent to someone other than the
other than the person or persons whose signature(s) person or persons whose signature(s) appear(s) within
appear(s) within this Letter of Transmittal or issued to this Letter of Transmittal, or to an address different
an address different from, that shown in the box entitled from, that shown in the box entitled "Description of
"Description of unregistered senior securities" within unregistered senior securities" within this Letter of
this Letter of Transmittal, or if exchange senior Transmittal, or to be credited to an account maintained
securities tendered by book-entry transfer that are not at DTC, Euroclear or Clearstream Luxembourg other than
accepted for purchase are to be credited to an account the account indicated above.
maintained at DTC, Euroclear or Clearstream Luxembourg
other than the account indicated above.
Name: Name:
------------------------------------- ----------------------------------------
(Please Print) (Please Print)
Address: Address:
---------------------------------- -------------------------------------
(Please Print) (Please Print)
- ------------------------------------------ ---------------------------------------------
(Zip Code) (Zip Code)
- ------------------------------------------ ---------------------------------------------
Tax Identification or Social Security Number Tax Identification or Social Security Number
(See Substitute Form W-9 herein) (See Substitute Form W-9 herein)
- -------------------------------------------------------------------------------------------------------------------------
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer and the Solicitation
1. Guarantee of Signatures. Signatures on this Letter of Transmittal
(or copy hereof) or a notice of withdrawal, as the case may be, must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act
(an "Eligible Institution") unless the unregistered senior securities tendered
pursuant thereto are tendered (i) by a registered Holder (including any
participant in DTC, Euroclear or Clearstream Luxembourg whose name appears on a
security position listing as the owner of unregistered senior securities) who
has not completed the box set forth herein entitled "Special Registration
Instructions" or "Special Delivery Instructions" of this Letter of Transmittal
or (ii) for the account of an Eligible Institution.
11
2. Delivery of this Letter of Transmittal and Unregistered Senior
Securities. Certificates for the physically tendered unregistered senior
securities (or a confirmation of a book-entry transfer to the Exchange Agent at
DTC, Euroclear or Clearstream Luxembourg of all unregistered senior securities
tendered electronically), as well as, in the case of physical delivery of
unregistered senior securities, a properly completed and duly executed copy of
this Letter of Transmittal or facsimile hereof and any other documents required
by this Letter of Transmittal must be received by the applicable Exchange Agent
at its address set forth herein prior to 5:00 P.M. New York City time, on the
Expiration Date. The method of delivery of the tendered unregistered senior
securities, this Letter of Transmittal and all other required documents, or
book-entry transfer and transmission of an Agent's Message by a DTC, Euroclear
or Clearstream Luxembourg participant, to the applicable Exchange Agent are at
the election and risk of the Holder and, except as otherwise provided below, the
delivery will be deemed made only when actually received by the applicable
Exchange Agent. Instead of delivery by mail, it is recommended that the Holder
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to assure timely delivery. No Letter of Transmittal or unregistered
senior securities should be sent to Viacom, DTC, Euroclear or Clearstream
Luxembourg.
The Exchange Agent will make a request to establish an account with
respect to the unregistered senior securities at DTC, Euroclear or Clearstream
Luxembourg for purposes of the Exchange Offer promptly after receipt of the
Prospectus, and any financial institution that is a participant in DTC,
Euroclear or Clearstream Luxembourg may make book-entry delivery of unregistered
senior securities by causing DTC, Euroclear or Clearstream, Luxembourg, as the
case may be, to transfer such unregistered senior securities into the Exchange
Agent's account at DTC, Euroclear or Clearstream Luxembourg, as the case may be,
in accordance with the relevant entity's procedures for transfer. However,
although delivery of unregistered senior securities may be effected through
book-entry transfer at DTC, Euroclear or Clearstream Luxembourg, an Agent's
Message (as defined in the next paragraph) in connection with a book-entry
transfer and any other required documents, must, in any case, be transmitted to
and received by the Exchange Agent at the address specified on the cover page of
the Letter of Transmittal on or prior to the Expiration Date or the guaranteed
delivery procedures described below must be complied with.
A Holder may tender unregistered senior securities that are held
through DTC by transmitting its acceptance through DTC's Automatic Tender Offer
Program, for which the transaction will be eligible, and DTC will then edit and
verify the acceptance and send an Agent's Message to the Exchange Agent for its
acceptance. The term "Agent's Message" means a message transmitted by DTC to,
and received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
each participant in DTC tendering the unregistered senior securities and that
such participant has received the Letter of Transmittal and agrees to be bound
by the terms of the Letter of Transmittal and the Company may enforce such
agreement against such participant. Delivery of an Agent's Message will also
constitute an acknowledgment from the tendering DTC participant that the
representations and warranties set forth on pages 5 and 6 of this Letter of
Transmittal are true and correct.
Holders of unregistered senior securities held through Euroclear or
Clearstream Luxembourg, are required to use book-entry transfer pursuant to the
standard operating procedures of Euroclear or Clearstream Luxembourg, as the
case may be, to accept the Exchange Offer and to tender their unregistered
senior securities. A computer-generated message must be transmitted to Euroclear
or Clearstream Luxembourg, as the case may be, in lieu of a Letter of
Transmittal, in order to tender the unregistered senior securities in the
Exchange Offer.
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available or (ii) who
cannot deliver their unregistered senior securities, this Letter of Transmittal
or any other documents required hereby to the applicable Exchange Agent prior to
the Expiration Date, or who cannot complete the procedure for book-entry
transfer on a timely basis must
12
tender their unregistered senior securities and follow the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined above) or
pursuant to the DTC, Euroclear or Clearstream Luxembourg standard operating
procedures; (ii) prior to the Expiration Date, the applicable Exchange Agent
must have received from the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder of the unregistered
senior securities, the certificate number or numbers of such unregistered senior
securities and the principal amount of unregistered senior securities tendered,
stating that the tender is being made thereby and guaranteeing that within five
Business Days after the Expiration Date, this Letter of Transmittal (or copy
thereof) together with the certificate(s) representing the unregistered senior
securities (or a confirmation of electronic mail delivery or book-entry delivery
into the Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg)
and any of the required documents will be deposited by the Eligible Institution
with the applicable Exchange Agent and (iii) such properly completed and
executed Letter of Transmittal (or copy thereof), as well as all other documents
required by this Letter of Transmittal and the certificate(s) representing all
tendered unregistered senior securities in proper form for transfer or a
confirmation of electronic mail delivery or book-entry delivery into the
Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg, must be
received by the applicable Exchange Agent within five Business Days after the
Expiration Date, all as provided in the Prospectus under the caption "The
Exchange Offer--Guaranteed Delivery Procedures." Any Holder of unregistered
senior securities who wishes to tender his unregistered senior securities
pursuant to the guaranteed delivery procedures described above must ensure that
the applicable Exchange Agent receives the Notice of Guaranteed Delivery prior
to 5:00 P.M., New York City time, on the Expiration Date. Upon request to the
Exchange Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish
to tender their unregistered senior securities according to the guaranteed
delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered unregistered senior securities
or this Letter of Transmittal will be determined by Viacom in its sole
discretion, which determination will be final and binding. All tendering
Holders, by execution of this Letter of Transmittal (or copy hereof), shall
waive any right to receive notice of the acceptance of the unregistered senior
securities for exchange. Viacom reserves the absolute right to reject any and
all unregistered senior securities or Letter of Transmittal not properly
tendered or any tenders Viacom's acceptance of which would, in the opinion of
counsel for Viacom, be unlawful. Viacom also reserves the absolute right to
waive any defects, irregularities or conditions of tender as to particular
unregistered senior securities. Viacom's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of unregistered senior
securities must be cured within such time as Viacom shall determine. Although
Viacom intends to notify Holders of defects or irregularities with respect to
tenders of unregistered senior securities, neither Viacom, the Exchange Agents
nor any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of unregistered senior securities, nor
shall any of them incur any liability for failure to give such notification.
Tenders of unregistered senior securities will not be deemed to have been made
until such defects or irregularities have been cured or waived. Any unregistered
senior securities received by the Exchange Agents that are not properly tendered
and as to which the defects or irregularities have not been cured or waived will
be returned by the Exchange Agents to the tendering Holders of unregistered
senior securities, unless otherwise provided in this Letter of Transmittal, as
soon as practicable following the Expiration Date.
3. Inadequate Space. If the space provided is inadequate, the
certificate numbers and/or the number of the unregistered senior securities
should be listed on a separate signed schedule attached hereto.
13
4. Tender by Holder. Except in limited circumstances, only a registered
Holder of unregistered senior securities or a Euroclear, Clearstream Luxembourg,
or DTC participant listed on a securities position listing furnished by
Euroclear, Clearstream Luxembourg, or DTC with respect to the unregistered
senior securities may tender its unregistered senior securities in the Exchange
Offer. Any beneficial owner of unregistered senior securities who is not the
registered Holder and is not a Euroclear, Clearstream Luxembourg, or DTC
participant and who wishes to tender should arrange with such registered holder
to execute and deliver this Letter of Transmittal on such beneficial owner's
behalf or must, prior to completing and executing this Letter of Transmittal and
delivering his, her or its unregistered senior securities, either make
appropriate arrangements to register ownership of the unregistered senior
securities in such beneficial owner's name or obtain a properly completed bond
power from the registered holder or properly endorsed certificates representing
such unregistered senior securities.
5. Partial Tenders; Withdrawals. Tenders of unregistered senior
securities will be accepted only in integral multiples of $1,000. If less than
the entire principal amount of any unregistered senior securities is tendered,
the tendering Holder should fill in the principal amount tendered in the third
column of the chart entitled "Description of Unregistered Senior Securities."
The entire principal amount of unregistered senior securities delivered to the
Exchange Agents will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount of all unregistered senior securities is not
tendered, unregistered senior securities for the principal amount of
unregistered senior securities not tendered and a certificate or certificates
representing exchange senior securities issued in exchange of any unregistered
senior securities accepted will be sent to the Holder at his or her registered
address, unless a different address is provided in the appropriate box on this
Letter of Transmittal or unless tender is made through DTC, Euroclear or
Clearstream Luxembourg, promptly after the unregistered senior securities are
accepted for exchange.
Except as otherwise provided herein, tenders of unregistered
senior securities may be withdrawn at any time prior to the Expiration Date. To
withdraw a tender of unregistered senior securities in the Exchange Offer, a
written or facsimile transmission notice of withdrawal must be received by the
Exchange Agent at its address set forth herein prior to the Expiration Date. Any
such notice of withdrawal must (1) specify the name of the person having
deposited the unregistered senior securities to be withdrawn (the "Depositor"),
(2) identify the unregistered senior securities to be withdrawn (including the
certificate number or numbers and principal amount of such unregistered senior
securities, or, in the case of unregistered senior securities transferred by
book-entry transfer the name and number of the account at Euroclear, Clearstream
Luxembourg, or DTC to be credited), (3) be signed by the Depositor in the same
manner as the original signature on the Letter of Transmittal by which such
unregistered senior securities were tendered (including any required signature
guarantees) or be accompanied by documents of transfer sufficient to have the
Registrar with respect to the unregistered senior securities register the
transfer of such unregistered senior securities into the name of the person
withdrawing the tender and (4) specify the name in which any such unregistered
senior securities are to be registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by Viacom, whose determination shall
be final and binding on all parties. Any unregistered senior securities so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no exchange senior securities will be issued with respect
thereto unless the unregistered senior securities so withdrawn are validly
re-tendered. Any unregistered senior securities which have been tendered but
which are not accepted for exchange by Viacom will be returned to the Holder
thereof without cost to such Holder as soon as practicable after withdrawal,
rejection of tender or termination of the Exchange Offer. Properly withdrawn
unregistered senior securities may be re-tendered by following one of the
procedures described in the Prospectus under "The Exchange Offer--Procedures for
Tendering" at any time prior to the Expiration Date.
14
6. Signatures on the Letter of Transmittal; Bond Powers and
Endorsements. If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) of the unregistered senior securities tendered hereby, the
signature must correspond with the name(s) as written on the face of the
unregistered senior securities without alteration, enlargement or any change
whatsoever.
If any of the unregistered senior securities tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If a number of unregistered senior securities registered in different
names are tendered, it will be necessary to complete, sign and submit as many
copies of this Letter of Transmittal as there are different registrations of
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) (which term, for the purposes described herein, shall
include a book-entry transfer facility whose name appears on the security
listing as the owner of the unregistered senior securities) of unregistered
senior securities tendered and the certificate(s) for exchange senior securities
issued in exchange therefor is to be issued (or any untendered principal amount
of unregistered senior securities is to be reissued) to the registered Holder,
such Holder need not and should not endorse any tendered Outstanding Note, nor
provide a separate bond power. In any other case, such Holder must either
properly endorse the unregistered senior securities tendered or transmit a
properly completed separate bond power with this Letter of Transmittal, with the
signatures on the endorsement or bond power guaranteed by an Eligible
Institution.
If this Letter of Transmittal (or copy hereof) is signed by a person
other than the registered Holder(s) of unregistered senior securities listed
therein, such unregistered senior securities must be endorsed or accompanied by
properly completed bond powers which authorize such person to tender the
unregistered senior securities on behalf of the registered Holder, in either
case signed as the name of the registered Holder or Holders appears on the
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) or any unregistered
senior securities or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, or officers of corporations or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by Viacom, evidence satisfactory to
Viacom of their authority to so act must be submitted with this Letter of
Transmittal.
Endorsements on unregistered senior securities or signatures on bond
powers required by this Instruction 6 must be guaranteed by an Eligible
Institution.
7. Special Registration and Delivery Instructions. Tendering Holders
should indicate, in the applicable spaces, the name and address to which
exchange senior securities or substitute unregistered senior securities for
principal amounts not tendered or not accepted for exchange are to be issued or
sent, if different from the name and address of the person signing this Letter
of Transmittal (or in the case of tender of the unregistered senior securities
through DTC, Euroclear or Clearstream Luxembourg, if different from the account
maintained at DTC, Euroclear or Clearstream Luxembourg indicated above). In the
case of issuance in a different name, the taxpayer identification or social
security number of the person named must also be indicated.
8. Transfer Taxes. Viacom will pay all transfer taxes, if any,
applicable to the exchange of unregistered senior securities pursuant to the
Exchange Offer. If, however, certificates representing exchange senior
securities or unregistered senior securities for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered Holder of the
unregistered senior securities tendered hereby, or if tendered unregistered
senior securities are registered in the name of any person other than the person
signing this Letter of
15
Transmittal, or if a transfer tax is imposed for any reasons other than the
exchange of unregistered senior securities pursuant to the Exchange Offer, then
the amount of any such transfer taxes (whether imposed on the registered Holder
or any other person) will be payable by the tendering Holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering Holder.
Except as provided in this Instruction 8, it will not be necessary for
transfer tax stamps to be affixed to the unregistered senior securities listed
in this Letter of Transmittal.
9. Waiver of Conditions. Viacom reserves the right, in its sole
discretion, to amend, waive or modify specified conditions in the Exchange Offer
in the case of any unregistered senior securities tendered.
10. Mutilated, Lost, Stolen or Destroyed Unregistered Senior
Securities. Any tendering Holder whose unregistered senior securities have been
mutilated, lost, stolen or destroyed should contact the applicable Exchange
Agent at the address indicated herein for further instruction.
11. Requests for Assistance or Additional Copies. Questions and
requests for assistance and requests for additional copies of the Prospectus or
this Letter of Transmittal may be directed to the applicable Exchange Agent at
the address specified in the Prospectus. Holders may also contact their broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
16
IMPORTANT TAX INFORMATION
The Holder is required to give the applicable Exchange Agent the social
security number or employer identification number of the Holder of the
unregistered senior securities. If the unregistered senior securities are in
more than one name or are not in the name of the actual owner, consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidance on which number to report.
TO BE COMPLETED BY ALL TENDERING HOLDERS
- -----------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: VIACOM INC.
- -----------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN IN THE
Form W-9 BOX AT RIGHT AND CERTIFY BY SIGNING AND
DATING BELOW.
-----------------------
Social Security Number(s)
or
-----------------------
Employer Identification Number(s)
- -----------------------------------------------------------------------------------------------------------------------
Part 2 - Certification - Under Part 3 -
Department of the Treasury Penalties of Perjury, I certify that:
Internal Revenue Service [ ] Check if Awaiting TIN
(1) The number shown on this form
Payer's Request for Taxpayer is my correct Taxpayer
Identification Number ("TIN") Identification Number (or I am
waiting for a number to be issued
to me), and
(2) I am NOT subject to back-up
withholding because: (a) I am
exempt from backup withholding, or
(b) I have not been notified by
the Internal Revenue Service
("IRS") that I am subject to
back-up withholding as a result of
failure to report all interest or
dividends, or (c) the IRS has
notified me that I am no longer
subject to back-up withholding.
- -----------------------------------------------------------------------------------------------------------------------
Certification Instructions - You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to back-up
withholding because of underreporting interest or dividends on your tax
return.
Sign Here SIGNATURE: DATE:
------------------------------- --------------------
- -----------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU UNDER THE SENIOR
SECURITES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
17
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Obtain a Number:
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
Payees Exempt from Backup Withholding:
Payees specifically exempted from backup withholding on ALL payments include the
following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a) or an individual
retirement plan.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
o An international organization or any agency of or instrumentality
thereof.
o A registered dealer in securities or commodities registered in the
U.S. or a possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described
in section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of
1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to withholding under section
1441.
o Payments to partnerships not engaged in a trade or business in the
U.S. and which have at least one nonresident partner.
o Payments of patronage dividends where the amount renewed is not paid
in money.
o Payments made by certain foreign nations.
o Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
o Payments of interest on obligations issued by individuals. Note: You
may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the
payee.
o Payments of tax-exempt interest (including exempt-interest dividends
in section 852).
o Payments described in section 6049(b)(5) to non-resident alien.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding.
FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER,
WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE
PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE
FORM.
Certain payments other than interest, dividends and patronage dividends that are
not subject to information reporting are also not subject to backup withholding.
For details, see the regulations under sections 6041, 6041A(a), 6045 and 6050A.
Privacy Act Notice. Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold 31% of taxable
interest, dividends, and certain other payments to a payee who does not furnish
a taxpayer identification number to a payee. Certain penalties may also apply.
Penalties:
(1) Penalty for Failure to Furnish Taxpayer Identification Number. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) Civil Penalty for False Information with Respect to Withholding. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
18
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payer.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employee identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
- -----------------------------------------------------------------------------------------------------------------------
For this type of account: Give the SOCIAL For this type of account: Give the SOCIAL
SECURITY number of-- SECURITY number of--
- -----------------------------------------------------------------------------------------------------------------------
1. An individual's The individual 8. Sole The owner 4
account proprietorship
account
- -----------------------------------------------------------------------------------------------------------------------
2. Two or more The actual owner of the 9. A valid trust, The legal entity (Do not
individuals (joint account or, if combined estate, or pension furnish the identifying
account) funds, any one of the trust number of the personal
individuals 1 representatives or trustee
unless the legal entity
itself is not designated in
the account title.) 5
- -----------------------------------------------------------------------------------------------------------------------
3. Husband and wife The actual owner of the 10. Corporate The corporation
(joint account) account or, if joint account
funds, either person 1
- -----------------------------------------------------------------------------------------------------------------------
4. Custodian account The minor 2 11. Religious, The organization
of a minor (Uniform charitable, or
Gift to Minors Act) educational
organization account
- -----------------------------------------------------------------------------------------------------------------------
5. Adult and minor The adult or, if the minor 12. Partnership The partnership
(joint account) is the only contributor, account held in the
the minor 1 name of the business
- -----------------------------------------------------------------------------------------------------------------------
6. Account in the The ward, minor or 13. Association, The organization
name of guardian or incompetent person 3 club or other
committee for a tax-exempt
designated ward, organization
minor, or incompetent
person
- -----------------------------------------------------------------------------------------------------------------------
7. a. The The grantor-trustee 1 14. A broker or The broker or nominee
usual revocable registered nominee
savings trust
account (grantor
is also trustee)
- -----------------------------------------------------------------------------------------------------------------------
7. b. So-called The actual owner 1 15. Account with The public entity
trust account that the Department of
is not a legal or Agriculture in the
valid trust under name of a public
State law entity (such as a
State or
local
government,
school
district, or
prison) that
receives
agricultural
program
payments.
- -----------------------------------------------------------------------------------------------------------------------
- --------
1 List first and circle the name of the person whose number you furnish.
2 Circle the minor's name and furnish the minor's Social Security number.
3 Circle the ward's, minor's or incompetent person's name and furnish such
person's Social Security number.
4 Show the name of the Owner.
5 List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
19
(DO NOT WRITE IN SPACE BELOW)
- ----------------------------------------------------------------------------------------------------------------
Certificate Surrendered Unregistered Senior Securities Unregistered Senior Securities
Tendered Accepted
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Delivery Prepared by Checked by Date
---------------- ---------------- ----------------
- ----------------------------------------------------------------------------------------------------------------
20
The Exchange Agents for the Exchange Offer are:
Principal Exchange Agent: Luxembourg Exchange Agent:
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 15th Floor 43, Boulevard Royal
New York, NY 10005 L-2955 Luxembourg
Attn: Agency & Trust Services Attn: Corporate Trust and Agencies
Telephone: (800) 422-2066 Telephone: (352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (352) 47 97 73 951
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY ADDITIONAL
INFORMATION, YOU MAY CONTACT THE PRINCIPAL EXCHANGE AGENT BY TELEPHONE AT (800)
422-2066, OR BY FACSIMILE AT (212) 825-3483 OR THE LUXEMBOURG EXCHANGE AGENT BY
TELEPHONE AT (352) 47 97 3933, OR BY FACSIMILE AT (352) 47 97 73 951.
ALL UNREGISTERED SENIOR SECURITIES MUST BE TENDERED BY BOOK-ENTRY TRANSFER IN
ACCORDANCE WITH THE STANDARD OPERATING PROCEDURES OF DTC, EUROCLEAR OR
CLEARSTREAM LUXEMBOURG. HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE
SENIOR SECURITIES FOR THEIR UNREGISTERED SENIOR SECURITIES PURSUANT TO THE
EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR UNREGISTERED SENIOR
SECURITIES TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG, AS THE CASE MAY BE,
PRIOR TO THE EXPIRATION DATE OR PROVIDE NOTICE OF GUARANTEED DELIVERY TO THE
APPLICABLE EXCHANGE AGENT AS DESCRIBED HEREIN.
21
Exhibit 99.3
VIACOM INC.
FORM OF NOTICE OF GUARANTEED DELIVERY
Unregistered 6.40% Senior Notes due 2006
($400,000,000 aggregate principal amount outstanding issued May 17, 2001)
Unregistered 6.625% Senior Notes due 2011
($1,000,000,000 aggregate principal amount outstanding issued May 17, 2001)
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
As set forth in the Prospectus dated , 2001 (the "Prospectus") of
Viacom Inc. ("Viacom") and Viacom International Inc. (the "Guarantor") and in
the accompanying Letter of Transmittal and instructions thereto (the "Letter of
Transmittal"), this form or one substantially equivalent hereto must be used to
accept Viacom's offer to exchange up to $400,000,000 aggregate principal amount
of 6.40% Senior Notes due 2006 and $1,000,000,000 aggregate principal amount of
6.625% Senior Notes due 2011 which have been registered under the Securities Act
of 1933, as amended (the "Securities Act") (collectively, the "exchange senior
securities") for the outstanding unregistered $400,000,000 aggregate principal
amount of 6.40% Senior Notes due 2006 and $1,000,000,000 aggregate principal
amount of 6.625% Senior Notes due 2011 (collectively, the "unregistered senior
securities"), respectively, if (i) certificates representing the unregistered
senior securities to be tendered for exchange are not lost but are not
immediately available, (ii) time will not permit the Letter of Transmittal,
certificates representing such unregistered senior securities or other required
documents to reach the Exchange Agent prior to the Expiration Date (as defined
herein) or (iii) the procedures for book-entry transfer cannot be completed
prior to the Expiration Date. This form may be delivered by an Eligible
Institution (as defined in the Letter of Transmittal) by mail or hand delivery
or transmitted, via telegram, telex or facsimile, to the Exchange Agent as set
forth below. All capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Prospectus.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2001
(THE "EXPIRATION DATE") UNLESS THE OFFER IS EXTENDED BY VIACOM. TENDERS OF
UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M,.
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
To: Citibank, N.A., Principal Exchange Agent
By Hand or Overnight Courier:
Citibank, N.A.
111 Wall Street, 15th Floor
New York, New York 10005
Attention: Agency & Trust Services
By Facsimile Transmission:
(212) 825-3483
Confirm By Telephone:
(800) 422-2066
To: Kredietbank S.A. Luxembourgeoise, Luxembourg Exchange Agent
By Hand or Overnight Courier:
Kredietbank, S.A. Luxembourgeoise
43, Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust and Agencies
By Facsimile Transmission:
(352) 47 97 73 951
Confirm By Telephone:
(352) 47 97 3933
Delivery of this instrument to an address, or transmission via facsimile with
confirmation, other than to the exchange agents as set forth above will not
constitute a valid delivery. The method of delivery of all documents, including
certificates, is at the risk of the holder. If delivery is by mail, we recommend
registered mail with return receipt requested, properly insured. You should read
the instructions accompanying the letter of transmittal carefully before you
complete this notice of guaranteed delivery.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to Viacom, upon the terms and subject
to the conditions of the exchange offer as set forth in the Prospectus and the
Letter of Transmittal, receipt of which is hereby acknowledged, the aggregate
principal amounts of unregistered senior securities set forth below pursuant to
the guaranteed delivery procedures set forth in the Prospectus.
The undersigned understands that tenders of unregistered senior
securities will be accepted only in authorized denominations. The undersigned
understands that tenders of unregistered senior securities pursuant to the
exchange offer may not be withdrawn after 5:00 p.m., New York City time on the
Expiration Date. Tenders of unregistered senior securities may be withdrawn if
the exchange offer is terminated or as otherwise provided in the Prospectus.
The undersigned understands that the exchange of unregistered senior
securities for exchange senior securities will only be made after receipt by the
Exchange Agent within three (3) business days of the Expiration Date of: (i) a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof) with any required signature guarantees, (ii) certificates representing
the unregistered senior securities covered hereby in proper form for transfer
(or confirmation of the book-entry transfer of such unregistered senior
securities into the Exchange Agent's account at The Depository Trust Company,
Euroclear or Clearstream Luxembourg, pursuant to the procedure for book-entry
transfer set forth in the Prospectus) and (iii) this Notice of Guaranteed
Delivery together with any required documents.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
PLEASE SIGN AND COMPLETE
Principal Amount of Unregistered 6.40% Senior Notes due
2006 Tendered:*
-----------------------------------------
Principal Amount of Unregistered 6.625% Senior Notes due
2011 Tendered:* Date:
----------------------------------------- ---------------------------------------
Name(s) of Registered Holder(s):
------------
Certificate No(s). of Unregistered Senior Securities (if --------------------------------------------
available):
--------------------------------------------- --------------------------------------------
Address:
- -------------------------------------------------------- ------------------------------------
- -------------------------------------------------------- --------------------------------------------
--------------------------------------------
Area Code and Telephone No:
-----------------
If unregistered senior securities will be delivered by Signature(s) of Registered Owner(s) or
book-entry transfer at The Depository Trust Company, Authorized Signatory:
Euroclear or Clearstream Luxembourg, insert
Account No:
--------------------------------------------- --------------------------------------------
- -------------------------------------------------------- --------------------------------------------
* Must be in denominations of principal amount of $1,000 and any integral multiple thereof.
This Notice of Guaranteed Delivery must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear on
certificates for unregistered senior securities or on a security position
listing as the owner of unregistered senior securities, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must
provide the following information.
Please print name(s) and address(es)
Name:
------------------------------------------------------------------------
------------------------------------------------------------------------
Capacity:
------------------------------------------------------------------------
Address(es):
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
Do not send unregistered senior securities with this form. Unregistered senior
securities should be sent to the Exchange Agent, together with a properly
completed and duly executed Letter of Transmittal.
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States or an "eligible guarantor institution" as defined by Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
hereby (a) represents that each Holder of unregistered senior securities on
whose behalf this tender is being made "own(s)" the unregistered senior
securities covered hereby within the meaning of Rule 13d-3 under the Exchange
Act, (b) represents that such tender of unregistered senior securities complies
with such Rule 14e-4, and (c) guarantees that, within three (3) business days
from the date of this Notice of Guaranteed Delivery, a properly completed and
duly executed Letter of Transmittal (or a facsimile thereof), together with
certificates representing the unregistered senior securities covered hereby in
proper form for transfer (or confirmation of the book-entry transfer of such
unregistered senior securities into the Exchange Agent's account at The
Depository Trust Company, Euroclear or Clearstream Luxembourg, pursuant to the
procedure for book-entry transfer set forth in the Prospectus) and required
documents will be deposited by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of
Transmittal and unregistered senior securities tendered hereby to the Exchange
Agent within the time period set forth and that failure to do so could result in
financial loss to the undersigned.
Name of Firm: Authorized Signature:
---------------------------- ----------
Address: Name:
---------------------------------- --------------------------
Title:
- ------------------------------------------ -------------------------
Area Code and Telephone No:
--------------
Exhibit 99.4
VIACOM INC.
FORM OF NOTICE OF GUARANTEED DELIVERY
Unregistered 6.40% Senior Notes due 2006
($3,075,000 aggregate principal amount outstanding issued January 17, 2001)
Unregistered 7.70% Senior Notes due 2010
($1,000,000 aggregate principal amount outstanding issued January 17, 2001)
Unregistered 7.875% Senior Debentures due 2030
($200,000 aggregate principal amount outstanding issued January 17, 2001)
---------------
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
---------------
As set forth in the Prospectus dated , 2001 (the "Prospectus") of
Viacom Inc. ("Viacom") and Viacom International Inc. (the "Guarantor") and in
the accompanying Letter of Transmittal and instructions thereto (the "Letter of
Transmittal"), this form or one substantially equivalent hereto must be used to
accept Viacom's offer to exchange up to $3,075,000 aggregate principal amount of
6.40% Senior Notes due 2006, $1,000,000 aggregate principal amount of 7.70%
Senior Notes due 2010 and $200,000 aggregate principal amount of 7.875% Senior
Debentures due 2030 which have been registered under the Securities Act of 1933,
as amended (the "Securities Act") (collectively, the "exchange senior
securities") for the remaining outstanding unregistered $3,075,000 aggregate
principal amount of 6.40% Senior Notes due 2006, $1,000,000 aggregate principal
amount of 7.70% Senior Notes due 2010 and $200,000 aggregate principal amount of
7.875% Senior Debentures due 2030 (collectively, the "unregistered senior
securities"), respectively, if (i) certificates representing the unregistered
senior securities to be tendered for exchange are not lost but are not
immediately available, (ii) time will not permit the Letter of Transmittal,
certificates representing such unregistered senior securities or other required
documents to reach the Exchange Agent prior to the Expiration Date (as defined
herein) or (iii) the procedures for book-entry transfer cannot be completed
prior to the Expiration Date. This form may be delivered by an Eligible
Institution (as defined in the Letter of Transmittal) by mail or hand delivery
or transmitted, via telegram, telex or facsimile, to the Exchange Agent as set
forth below. All capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Prospectus.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2001
(THE "EXPIRATION DATE") UNLESS THE OFFER IS EXTENDED BY VIACOM. TENDERS OF
UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M,.
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
To: Citibank, N.A., Principal Exchange Agent
By Hand or Overnight Courier:
Citibank, N.A.
111 Wall Street, 15th Floor
New York, New York 10005
Attention: Agency & Trust Services
By Facsimile Transmission:
(212) 825-3483
Confirm By Telephone:
(800) 422-2066
To: Kredietbank S.A. Luxembourgeoise, Luxembourg Exchange Agent
By Hand or Overnight Courier:
Kredietbank, S.A. Luxembourgeoise
43, Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust and Agencies
By Facsimile Transmission:
(352) 47 97 73 951
Confirm By Telephone:
(352) 47 97 3933
Delivery of this instrument to an address, or transmission via facsimile with
confirmation, other than to the exchange agents as set forth above will not
constitute a valid delivery. The method of delivery of all documents, including
certificates, is at the risk of the holder. If delivery is by mail, we recommend
registered mail with return receipt requested, properly insured. You should read
the instructions accompanying the letter of transmittal carefully before you
complete this notice of guaranteed delivery.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to Viacom, upon the terms and subject
to the conditions of the exchange offer as set forth in the Prospectus and the
Letter of Transmittal, receipt of which is hereby acknowledged, the aggregate
principal amounts of unregistered senior securities set forth below pursuant to
the guaranteed delivery procedures set forth in the Prospectus.
The undersigned understands that tenders of unregistered senior
securities will be accepted only in authorized denominations. The undersigned
understands that tenders of unregistered senior securities pursuant to the
exchange offer may not be withdrawn after 5:00 p.m., New York City time on the
Expiration Date. Tenders of unregistered senior securities may be withdrawn if
the exchange offer is terminated or as otherwise provided in the Prospectus.
The undersigned understands that the exchange of unregistered senior
securities for exchange senior securities will only be made after receipt by the
Exchange Agent within three (3) business days of the Expiration Date of: (i) a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof) with any required signature guarantees, (ii) certificates representing
the unregistered senior securities covered hereby in proper form for transfer
(or confirmation of the book-entry transfer of such unregistered senior
securities into the Exchange Agent's account at The Depository Trust Company,
Euroclear or Clearstream Luxembourg, pursuant to the procedure for book-entry
transfer set forth in the Prospectus) and (iii) this Notice of Guaranteed
Delivery together with any required documents.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
PLEASE SIGN AND COMPLETE
Principal Amount of Unregistered 6.40% Senior Notes due
2006 Tendered:*
-----------------------------------------
Principal Amount of Unregistered 7.70% Senior Notes due
2010 Tendered:*
-----------------------------------------
Principal Amount of Unregistered 7.875% Senior Debentures
due 2030 Tendered:* Date:
------------------------------------- ---------------------------------------
Name(s) of Registered Holder(s):
------------
Certificate No(s). of Unregistered Senior Securities (if --------------------------------------------
available):
--------------------------------------------- --------------------------------------------
Address:
- -------------------------------------------------------- ------------------------------------
- -------------------------------------------------------- --------------------------------------------
--------------------------------------------
Area Code and Telephone No:
-----------------
If unregistered senior securities will be delivered by Signature(s) of Registered Owner(s) or
book-entry transfer at The Depository Trust Company, Authorized Signatory:
Euroclear or Clearstream Luxembourg, insert
Account No:
--------------------------------------------- --------------------------------------------
- -------------------------------------------------------- --------------------------------------------
* Must be in denominations of principal amount of $1,000 and any integral multiple thereof.
This Notice of Guaranteed Delivery must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear on
certificates for unregistered senior securities or on a security position
listing as the owner of unregistered senior securities, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must
provide the following information.
Please print name(s) and address(es)
Name:
------------------------------------------------------------------------
------------------------------------------------------------------------
Capacity:
------------------------------------------------------------------------
Address(es):
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
Do not send unregistered senior securities with this form. Unregistered senior
securities should be sent to the Exchange Agent, together with a properly
completed and duly executed Letter of Transmittal.
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States or an "eligible guarantor institution" as defined by Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
hereby (a) represents that each Holder of unregistered senior securities on
whose behalf this tender is being made "own(s)" the unregistered senior
securities covered hereby within the meaning of Rule 13d-3 under the Exchange
Act, (b) represents that such tender of unregistered senior securities complies
with such Rule 14e-4, and (c) guarantees that, within three (3) business days
from the date of this Notice of Guaranteed Delivery, a properly completed and
duly executed Letter of Transmittal (or a facsimile thereof), together with
certificates representing the unregistered senior securities covered hereby in
proper form for transfer (or confirmation of the book-entry transfer of such
unregistered senior securities into the Exchange Agent's account at The
Depository Trust Company, Euroclear or Clearstream Luxembourg, pursuant to the
procedure for book-entry transfer set forth in the Prospectus) and required
documents will be deposited by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of
Transmittal and unregistered senior securities tendered hereby to the Exchange
Agent within the time period set forth and that failure to do so could result in
financial loss to the undersigned.
Name of Firm: Authorized Signature:
---------------------------- ----------
Address: Name:
---------------------------------- --------------------------
Title:
- ------------------------------------------ -------------------------
Area Code and Telephone No:
--------------
Exhibit 99.5
FORM OF EXCHANGE AGENT AGREEMENT
July ___, 2001
Citibank, N.A.
111 Wall Street, 15th Floor
New York, New York 10005
Attention: Agency & Trust Services
Kredietbank S.A. Luxembourgeoise
43 Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation, proposes to make an offer
(the "Exchange Offer") to exchange all of its outstanding unregistered 6.40%
Senior Notes due 2006 (the "Unregistered Notes due 2006"), of which $403,075,000
aggregate principal amount is outstanding, its 7.70% Senior Notes due 2010 (the
"Unregistered Notes due 2010"), of which $1,000,000 aggregate principal amount
is outstanding, its 6.625% Senior Notes due 2011 (the "Unregistered Notes due
2011"), of which $1,000,000,000 aggregate principal amount is outstanding and
its 7.875% Senior Debentures due 2030, of which $200,000 aggregate principal
amount is outstanding, (the "Unregistered Debentures" and, together with the
Unregistered Notes due 2006, the Unregistered Notes due 2010 and the
Unregistered Notes due 2011, the "Unregistered Securities") for an equal
principal amount of its 6.40% Senior Notes due 2006 (the "2006 Exchange Notes"),
its 7.70% Senior Notes due 2010 (the "2010 Exchange Notes"), its 6.625% Senior
Notes due 2011 (the "2011 Exchange Notes") and its 7.875% Senior Debentures due
2030 (the "Exchange Debentures" and, together with the 2006 Exchange Notes, the
2010 Exchange Notes and the 2011 Exchange Notes, the "Exchange Securities"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated July __, 2001 (the "Prospectus"), proposed to be
distributed to all record holders of the Unregistered Securities. The
Unregistered Securities and the Exchange Securities are collectively referred to
herein as the "Securities". The Securities are and will be unconditionally
guaranteed by Viacom International Inc., which, together with Viacom Inc., will
be referred to herein as the "Company".
The Company hereby appoints Citibank, N.A. to act as the
Principal Exchange Agent and Kredietbank S.A. Luxembourgeoise to act as
Luxembourg Exchange Agent (collectively the "Exchange Agents") in connection
with the Exchange Offer. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Prospectus.
The Exchange Offer is expected to be commenced by the Company
on or about , 2001. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Unregistered Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for
Unregistered Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on , 2001 or on such subsequent date or time to which the Company
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before
9:00 a.m., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Unregistered Securities
not theretofore accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Prospectus under the caption
"The Exchange Offer -- Expiration Date; Extensions; Amendment; Termination." The
Company will give oral (promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the sections of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the
Unregistered Securities at The Depository Trust Company (the "Book-Entry
Transfer Facility") for purposes of the Exchange Offer within two business days
after the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Unregistered Securities by causing the Book-Entry Transfer
Facility to transfer such Unregistered Securities into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Unregistered Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Unregistered Securities, and
any book-entry confirmations (as such phrase is used in the Prospectus) to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein; (ii) the Unregistered Securities have otherwise been properly
tendered and (iii) holders have provided their correct Tax Identification Number
or required certification. In each case where the Letter of Transmittal or any
other document has been improperly completed or
executed or any of the certificates for Unregistered Securities are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other
action as may be reasonably necessary or advisable to cause such irregularity to
be corrected. You are not authorized to waive any irregularity in connection
with a surrender except as provided in paragraph 4. If such irregularity is
neither corrected nor waived, you will return to the surrendering holder (at
your option by either (a) first class mail under a blanket surety bond or
insurance protecting you and the Company from losses or liabilities arising out
of the non-receipt or non-delivery of such certificates or (b) registered mail
insured separately for the value of such certificates) to such holders address
set forth in the Letter of Transmittal, any certificates for Unregistered
Securities surrendered in connection therewith, the related Letter of
Transmittal, and any other documents received with such certificates, and a
letter of notice explaining the reasons for the return of the certificates and
other documents.
4. With the approval of the President or any Vice President of
the Company (such approval, if given orally, to be promptly confirmed in
writing) or any other party designated in writing, by such an officer, you are
authorized to waive any irregularities in connection with any tender of
Unregistered Securities pursuant to the Exchange Offer.
5. Tenders of Unregistered Securities may be made only as set
forth in the Letter of Transmittal and in the sections of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering," and "The Exchange
Offer -- Guaranteed Delivery Procedures," and Unregistered Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Unregistered
Securities which the President, Senior Vice President, or any Vice President of
the Company shall approve as having been properly tendered shall be considered
to be properly tendered (such approval, if given orally, shall be promptly
confirmed in writing).
6. You shall advise the Company with respect to any
Unregistered Securities received subsequent to the Expiration Date and accept
its instructions with respect to disposition of such Unregistered Securities.
7. You shall accept tenders:
(a) in cases where the Unregistered Securities are registered
in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of
Unregistered Securities, provided that customary transfer requirements,
including payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Unregistered Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Unregistered Securities to the registrar for split-up and
return any untendered Unregistered Securities to the holder (or such other
person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Unregistered Securities properly tendered and you, on behalf of the
Company, will exchange such Unregistered Securities for Exchange Securities and
cause such Unregistered Securities to be cancelled. Delivery of Exchange
Securities will be made on behalf of the Company by you at the rate of $1,000
principal amount of Exchange Securities for each $1,000 principal amount of the
corresponding series of Unregistered Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in writing) of acceptance
of said Unregistered Securities by the Company; provided, however, that in all
cases, Unregistered Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Unregistered
Securities (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) with any required signature
guarantees and any other required documents. You shall issue Exchange Securities
only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Unregistered Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
10. All Unregistered Securities accepted for exchange are to
be retired from the Company's books and will no longer be outstanding.
11. The Company shall not be required to exchange any
Unregistered Securities tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company not to
exchange any Unregistered Securities tendered shall be given (if given orally,
to be promptly confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Unregistered Securities tendered because
of an invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Expiration Date; Extensions;
Amendment; Termination" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Unregistered Securities (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited them.
13. All certificates for reissued Unregistered Securities,
unaccepted Unregistered Securities or for Exchange Securities shall be forwarded
by (a) first-class certified mail, return
receipt requested, under a blanket surety bond or insurance protecting you and
the Company from losses and liabilities arising out of the non-receipt or
non-delivery of such certificates or (b) registered mail insured separately for
the value of such securities.
14. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
15. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act
unless the same constitutes your own gross negligence, willful misconduct or bad
faith, and in no event shall you be liable to a security holder, the Company or
any third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Unregistered Securities represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the Exchange
Offer;
(d) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with indemnity reasonably satisfactory to you;
(e) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you shall
in good faith believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may reasonably rely on and shall be protected in acting
upon written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Unregistered
Securities pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of any
Unregistered Securities.
16. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may deem
reasonably appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as such terms are used in the
Prospectus) or such other forms as may be approved from time to time by the
Company, to all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer, provided that
such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents on your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention: General
Counsel, Viacom Inc., 1515 Broadway, New York, NY 10036.
17. You shall advise by facsimile transmission the President,
Corporate Finance, of the Company (at the facsimile number (212) 258-6143), and
such other person or persons as the Company may request, daily (and more
frequently during the week immediately preceding the Expiration Date if
requested) up to and including the Expiration Date, as to the number of
Unregistered Securities which have been tendered pursuant to the Exchange Offer
and the items received by you pursuant to this Agreement, separately reporting
and giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of
Unregistered Securities tendered, the aggregate principal amount of Unregistered
Securities accepted and deliver said list to the Company.
18. Letters of Transmittal, book-entry confirmations and
Notices of Guaranteed Delivery shall be stamped by you as to the date and, after
the expiration of the Exchange Offer, the time, of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities and shall
thereafter be delivered by you to the Company. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Company.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto. The provisions of this section shall survive the termination of this
Agreement.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to your duties,
liabilities and indemnification as Exchange Agent, which shall be controlled by
this Exchange Agreement.
21. The Company covenants and agrees to fully indemnify and
hold you harmless in your capacity as Exchange Agent hereunder against any and
all loss, liability, cost or expense, including attorneys' fees and expenses,
incurred without gross negligence or willful misconduct on your part, arising
out of or in connection with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Unregistered Securities reasonably believed by you in
good faith to be authorized, and in delaying or refusing in good faith to accept
any tenders or effect any transfer of Unregistered Securities. In no case, shall
the Company be liable under this indemnity with respect to any claim against you
unless the Company shall be notified by you, by letter or facsimile
transmission, of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have received any such
written assertion or shall have been served with a summons in connection
therewith. The Company shall be entitled to participate at its own expense in
the defense of any such claim or other action and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
It is understood that the Company shall not be liable under this paragraph for
the fees and disbursements of more than one legal counsel to you. In the event
that the Company may assume the defense of any such suit, the Company shall not
be liable for the fees and expenses of any additional counsel thereafter
retained by you, so long as the Company shall retain counsel satisfactory to you
to defend such suit, and so long as you have not determined, in your reasonable
judgment, that a conflict of interest exists between you and the Company. The
provisions of this section shall survive the termination of this Agreement.
Without the prior written consent of the Company, you will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provisions of this Agreement (whether or
not you, the Company or any of its directors, officers and controlling persons
is an actual or potential party to such claim or proceeding), unless such
settlement or consent includes an unconditional release of the Company and its
directors, officers and controlling persons from all liability arising out of
such claim, action or proceeding.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
23. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Unregistered Securities, the Company's check in the
amount of all transfer taxes so payable; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to
agreements made and to be performed entirely within such state, and without
regard to conflicts of law principles, and shall inure to the benefit of, and
the obligations created hereby shall be binding upon, the successors and assigns
of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Viacom Inc.
1515 Broadway
New York, NY 10036
Facsimile: (212) 258-6099
Attention: General Counsel
Copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile: (212) 848-7179
Attention: Stephen T. Giove, Esq.
If to the Exchange Agent:
Citibank, N.A.
111 Wall Street, 15th Floor
New York, New York 10005
Facsimile: (212) 825-3483
Attention: Agency & Trust Service
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 18 and 20 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
VIACOM INC.
By:
--------------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.
By:
--------------------------------
Name:
Title:
Accepted as of the date
first above written:
CITIBANK, N.A., as Principal Exchange Agent
By:
-----------------------------------------
Name:
Title:
KREDIETBANK S.A. LUXEMBOURGEOISE,
as Luxembourg Exchange Agent
By:
-----------------------------------------
Name:
Title:
SCHEDULE I
COMPENSATION OF EXCHANGE AGENT: