As filed with the Securities and Exchange Commission on May 31, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VIACOM INC. 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 (State or other jurisdiction of incorporation or organization)
organization) 13-3844753
04-2949533 (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' including area code, of Registrants'
principal executive offices) principal executive offices)
---------------------------------
Michael D. Fricklas, Esq.
Executive Vice President,
General Counsel and Secretary
Viacom Inc.
1515 Broadway
New York, New York 10036
(212) 258-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------------
Copies to:
Stephen T. Giove, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
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Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Amount to Proposed Maximum Proposed Maximum
Title of Each Class of be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Unit Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------
2001 Senior Debt Securities, 2001 Senior
Subordinated Debt Securities and 1995
Senior Debt Securities of Viacom(2)(4) .....
Preferred Stock of Viacom(3)................
Class B Common Stock of Viacom to be
issued upon conversion of certain
securities(4)...............................
Warrants of Viacom and, if applicable,
Viacom International(5).....................
Guarantees of Viacom International Inc. $5,000,000,000(7) $1,250,000(1)
(6).........................................
Total.......................................
====================================================================================================================
(1) The registration fee from the securities being registered hereunder,
except the guarantees, has been previously paid on December 26, 2000 in
connection with the filing of Registration Statement No. 333-52728.
Pursuant to Rule 457(n), no registration fee will be paid in connection
with the guarantees.
(2) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of 2001 senior debt securities, 2001 senior
subordinated debt securities and 1995 senior debt securities of Viacom as
may be sold, from time to time. If any 2001 senior debt securities, 2001
senior subordinated debt securities or 1995 senior debt securities are
issued at an original issue discount, then the offering price shall be in
such greater principal amount as shall result in an aggregate price to
investors not to exceed $5,000,000,000.
(3) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of preferred stock of Viacom as may be sold
from time to time.
(4) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of Class B common stock of Viacom as may
from time to time be issued upon conversion of 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior debt
securities or preferred stock.
(5) Subject to note (7) below, there is being registered hereunder an
indeterminate amount and number of warrants of Viacom as may be sold from
time to time, representing rights to purchase certain of 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior debt
securities or preferred stock of Viacom being registered hereunder.
(6) As may be issued in connection with 2001 senior debt securities, 2001
senior subordinated debt securities, 1995 senior debt securities or
preferred stock of Viacom.
(7) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$5,000,000,000 or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies.
THIS NEW REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE
AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-52728, WHICH WAS DECLARED
EFFECTIVE ON JANUARY 8, 2001. SUCH POST-EFFECTIVE AMENDMENT SHALL HEREAFTER
BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS OF THIS REGISTRATION
STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT OF 1933.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS FILED AS
PART OF THIS REGISTRATION STATEMENT ALSO CONSTITUTES A PROSPECTUS FOR
REGISTRATION STATEMENT NO. 333-52728. THE $5,000,000,000 OF SECURITIES REMAINING
UNSOLD FROM REGISTRATION STATEMENT NO. 333-52728 WILL BE COMBINED WITH THE $0
AGGREGATE AMOUNT OF 2001 SENIOR DEBT SECURITIES, 2001 SENIOR SUBORDINATED DEBT
SECURITIES, 1995 SENIOR DEBT SECURITIES, PREFERRED STOCK, CLASS B COMMON STOCK,
WARRANTS AND GUARANTEES, TO BE REGISTERED PURSUANT TO THIS REGISTRATION
STATEMENT TO ENABLE THE REGISTRANTS TO OFFER AN AGGREGATE AMOUNT OF
$5,000,000,000 OF SECURITIES PURSUANT TO THE COMBINED PROSPECTUS.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
Subject To Completion
Preliminary Prospectus, dated May 31, 2001
PROSPECTUS
$5,000,000,000
VIACOM INC.
Certain securities of which are unconditionally
guaranteed as to payment of principal and
interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
--------------------
We may offer and sell, from time to time, in one or more offerings and
series, together or separately:
o 2001 senior debt securities of Viacom;
o 2001 senior subordinated debt securities of Viacom;
o 1995 senior debt securities of Viacom;
o preferred stock of Viacom;
o guarantees of Viacom International of any of the foregoing; and
o warrants representing rights to purchase 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior
debt securities or preferred stock of Viacom.
The 2001 senior debt securities, 2001 senior subordinated debt
securities, 1995 senior debt securities and preferred stock of Viacom may be
convertible into Class B common stock of Viacom.
When we offer securities we will provide you with a prospectus
supplement or term sheet describing the specific terms of the specific issue of
securities, including the offering price of the securities. You should carefully
read this prospectus and the prospectus supplements or term sheets relating to
the specific issue of securities before you decide to invest in any of these
securities.
--------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is .
TABLE OF CONTENTS
Page
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ABOUT THIS PROSPECTUS..........................................................i
WHERE YOU CAN FIND MORE INFORMATION............................................1
THE COMPANY....................................................................2
THE GUARANTOR..................................................................2
USE OF PROCEEDS................................................................3
RATIO OF EARNINGS TO FIXED CHARGES.............................................3
GENERAL DESCRIPTION OF THE DEBT SECURITIES.....................................4
DESCRIPTION OF THE 2001 DEBT SECURITIES.......................................10
DESCRIPTION OF THE 1995 SENIOR DEBT SECURITIES................................19
DESCRIPTION OF PREFERRED STOCK................................................27
DESCRIPTION OF COMMON STOCK...................................................32
DESCRIPTION OF WARRANTS.......................................................34
PLAN OF DISTRIBUTION..........................................................37
LEGAL MATTERS.................................................................38
EXPERTS.......................................................................38
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC utilizing the "shelf" registration process. Under this shelf process, we
may sell the securities described in this prospectus in one or more offerings up
to a total dollar amount of $5,000,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
In this prospectus we use the terms "Viacom," "we," "us," and "our" to
refer to Viacom Inc. References to "Viacom International" are references to
Viacom International Inc. References to "2001 senior debt securities" are
references to the senior debt securities that may be issued under the 2001
senior indenture; references to "2001 senior subordinated debt securities" are
references to the senior subordinated debt securities that may be issued under
the 2001 senior subordinated indenture; references to "1995 senior debt
securities" are references to the senior debt securities that may be issued
under the 1995 senior indenture; references to "2001 debt securities" are
references to both the 2001 senior debt securities and the 2001 senior
subordinated debt securities; and references to "debt securities" are references
to the 2001 debt securities and 1995 senior debt securities, collectively.
References to "securities" includes any security that we might sell under this
prospectus or any prospectus supplement. References to "$" and "dollars" are to
United States dollars.
You should rely only on the information contained in or incorporated by
reference in this prospectus. Viacom has not authorized anyone to provide you
with different information. If anyone provides you with different or additional
information, you should not rely on it. Neither Viacom nor Viacom International
is making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information contained in or
incorporated by reference in this prospectus is accurate as of any date other
than the date on the front of this prospectus. Our business, financial
condition, results of operations and prospects may have changed since then.
i
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document that we file
at the Public Reference Room of the SEC at 450 Fifth Street, NW, Washington,
D.C. 20549; 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 is also 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 Sections 13(a), 13(c), 14,
or 15(d) of the Exchange Act, including filings made after the date of the
initial registration statement and until we sell all of the securities:
(a) Our Registration Statement on Form S-4 dated November 24, 1999;
(b) Our Annual Report on Form 10-K for the year ended December 31,
2000;
(c) Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2001;
(d) Our Current Report on Form 8-K dated May 4, 2000 as amended on
July 17, 2000, our Current Report on Form 8-K dated February 21,
2001 and our Current Report on Form 8-K dated May 30, 2001;
(e) Our definitive Proxy Statement dated April 16, 2001;
(f) CBS Corporation Annual Report on Form 10-K for the year ended
December 31, 1999, as amended on April 28, 2000;
(g) The consolidated financial statements of Infinity Broadcasting
Corporation, as set forth in Item 8 to Infinity's Annual Report
on Form 10-K for the year ended December 31, 1999;
(h) The condensed consolidated financial statements of Infinity, as
set forth in Item 1 to Infinity's Quarterly Report on Form 10-Q
for the quarter ended September 30, 2000; and
(i) Our Registration Statement on Form S-4 dated January 12, 2001.
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.
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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 debt securities and/or the
preferred stock if any guarantees are issued, 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 of the businesses of the
Video, Entertainment and Publishing segments and certain related Internet sites.
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USE OF PROCEEDS
Unless indicated otherwise in a prospectus supplement, we expect to use
the net proceeds from the sale of our securities for general corporate purposes,
including acquisitions, repayment of borrowings, working capital, capital
expenditures and stock repurchases.
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The ratios of earnings to fixed charges for Viacom are set forth below,
on a pro forma basis, for the three months ended March 31, 2001 and the year
ended December 31, 2000 to give effect to the merger of CBS into Viacom, the
acquisition of BET Holdings II, Inc. by Viacom, the merger of Infinity into a
subsidiary of Viacom and certain other transactions as if 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 represent
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
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GENERAL DESCRIPTION OF THE DEBT SECURITIES
The following description, together with the descriptions found in
"Description of the 2001 Debt Securities" and "Description of the 1995 Senior
Debt Securities", of Viacom's debt securities to be issued under the debt
indentures summarizes the general terms and provisions of its debt securities to
which any prospectus supplement may relate. The following descriptions also
describe the specific terms of Viacom's debt securities and the extent, if any,
to which the general provisions summarized may apply to any series of its debt
securities in the prospectus supplement relating to such series. References to
"2001 senior debt securities" are references to the senior debt securities that
may be issued under the 2001 senior indenture; references to "2001 senior
subordinated debt securities" are references to the senior subordinated debt
securities that may be issued under the 2001 senior subordinated indenture;
references to "1995 senior debt securities" are references to the senior debt
securities that may be issued under the 1995 senior indenture; references to
"2001 debt securities" are references to both the 2001 senior debt securities
and the 2001 senior subordinated debt securities; and references to "debt
securities" are references to the 2001 debt securities and the 1995 senior debt
securities, collectively.
Viacom may issue its 2001 senior debt securities from time to time, in
one or more series under a senior indenture, between Viacom and The Bank of New
York, as senior trustee, or another senior trustee named in a prospectus
supplement. We refer to this indenture as the "2001 senior indenture." The 2001
senior indenture is filed as an exhibit to the registration statement of which
this prospectus is a part. Viacom may issue its 2001 senior subordinated debt
securities from time to time, in one or more series under a senior subordinated
indenture, between Viacom and The Bank of New York, as senior subordinated
trustee, or another senior subordinated trustee named in a prospectus
supplement. We refer to this indenture as the "2001 senior subordinated
indenture." The 2001 senior subordinated indenture is filed as an exhibit to the
registration statement of which this prospectus is a part. Viacom may issue its
1995 senior debt securities from time to time, in one or more series under a
senior indenture, dated as of May 15, 1995, among Viacom, 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. This senior indenture was supplemented by a first supplemental
indenture, dated as of May 24, 1995, was further supplemented and amended by a
second supplemental indenture and amendment no. 1, dated as of December 15,
1995, was further supplemented by a third supplemental indenture, dated as of
July 22, 1996, was further supplemented by a fourth supplemental indenture,
dated as of August 1, 2000, was further supplemented by a fifth supplemental
indenture, dated January 17, 2001, was further supplemented by a sixth
supplemental indenture, dated May 17, 2001 and was further supplemented by a
seventh supplemental indenture, dated as of May 31, 2001. We refer to this
senior indenture, as so supplemented and amended, as the "1995 senior
indenture." Together the 2001 senior indenture and the 2001 senior subordinated
indenture are referred to as the 2001 debt indentures, and together the 2001
debt indentures and the 1995 senior indenture are referred to as the "debt
indentures". The trustee under the 2001 senior indenture is called the "2001
senior debt trustee," the trustee under the 2001 senior subordinated indenture
is called the "2001 senior subordinated debt trustee" and the trustee under the
1995 senior indenture is called the "1995 senior debt trustee". Together the
2001 senior debt trustee and the 2001 senior subordinated debt trustee are
called the 2001 debt trustees and together the 2001 debt trustees and the 1995
senior debt trustee are called to as the "debt trustees".
None of the indentures limit the amount of debt securities that may be
issued. The applicable indenture provides that debt securities may be issued up
to an aggregate principal amount authorized by Viacom and may be payable in any
currency or currency unit designated by Viacom.
General
Viacom will issue debt securities from time to time and offer its debt
securities on terms
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determined by market conditions at the time of their sale. Viacom may issue debt
securities in one or more series with the same or various maturities, at par, at
a premium, or at a discount. Any debt securities bearing no interest or interest
at a rate which at the time of issuance is below market rates will be sold at a
discount, which may be substantial, from their stated principal amount. Viacom
will describe the material federal income tax consequences and other special
considerations applicable to any substantially discounted debt securities in a
related prospectus supplement.
You should refer to the prospectus supplement for the following terms
of the debt securities offered by this registration statement:
o the designation, aggregate principal amount and authorized
denominations of the debt securities;
o the percentage of the principal amount at which Viacom will issue
the debt securities;
o the date or dates on which the debt securities will mature;
o the annual interest rate or rates of the debt securities, or the
method of determining the rate or rates;
o the date or dates on which any interest will be payable, the date
or dates on which payment of any interest will commence and the
regular record dates for the interest payment dates;
o whether the debt securities will be guaranteed by Viacom
International;
o the terms of any mandatory or optional redemption, including any
provisions for any sinking, purchase or other similar funds, or
repayment options;
o the currency, currencies or currency units for which the debt
securities may be purchased and in which the principal, any
premium and any interest may be payable;
o if the currency, currencies or currency units for which the debt
securities may be purchased or in which the principal, any premium
and any interest may be payable is at Viacom's election or the
purchaser's election, the manner in which the election may be
made;
o if the amount of payments on the debt securities is determined by
an index based on one or more currencies or currency units, or
changes in the price of one or more securities or commodities, the
manner in which the amounts may be determined;
o the extent to which any of the debt securities will be issuable in
temporary or permanent global form, and the manner in which any
interest payable on a temporary or permanent global security will
be paid;
o the terms and conditions upon which the debt securities may be
convertible into or exchanged for common stock, preferred stock,
or indebtedness or other securities of any person, including
Viacom;
o information with respect to book-entry procedures, if any;
o a discussion of any material federal income tax and other special
considerations, procedures and limitations relating to the debt
securities; and
5
o any other specific terms of the debt securities not inconsistent
with the applicable debt indenture.
If Viacom sells any of the debt securities for one or more foreign
currencies or foreign currency units or if the principal of, premium, if any, or
interest on any series of debt securities will be payable in one or more foreign
currencies or foreign currency units, it will describe the restrictions,
elections, any material federal income tax consequences, specific terms and
other information with respect to the issue of debt securities and the
currencies or currency units in the related prospectus supplement.
Unless specified otherwise in a prospectus supplement, the principal
of, premium on, and interest on the debt securities will be payable, and the
debt securities will be transferable, at the corporate trust office of the
applicable debt trustee in New York, New York. However, Viacom may make payment
of interest, at its option, by check mailed on or before the payment date to the
address of the person entitled to the interest payment or by transfer to an
account held by the payee as it appears on the registry books of the debt
trustee, Viacom or its agents.
Unless specified otherwise in a prospectus supplement, Viacom will
issue the debt securities in registered form and in denominations of $1,000 and
any integral multiple of $1,000. Bearer securities, other than those issued in
global form, will be issued in denominations of $5,000. No service charge will
be made for any transfer or exchange of any debt securities, but Viacom may,
except in specific cases not involving any transfer, require payment of a
sufficient amount to cover any tax or other governmental charge payable in
connection with the transfer or exchange.
Viacom's rights and the rights of its creditors, including holders of
debt securities, to participate in any distribution of assets of any Viacom
subsidiary upon its liquidation or reorganization or otherwise is subject to the
prior claims of creditors of the subsidiary, except to the extent that Viacom's
claims as a creditor of the subsidiary may be recognized.
Guarantees
Viacom International may unconditionally guarantee the due and punctual
payment of the principal of, premium, if any, and any interest on the debt
securities when and as the same shall become due and payable, whether at
maturity, upon redemption, upon acceleration or otherwise. The guarantees of the
debt securities will be endorsed on the debt 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 applicable debt indentures provide 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 debt securities may be entitled to collect under the
guarantees. Holders, by their acceptance of the debt 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 (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
6
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 was voided
as a fraudulent conveyance or held unenforceable for any other reason, the
holders of any debt 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 2001 senior
debt securities, 2001 senior subordinated securities and 1995 senior securities
and, if applicable, the related guarantees, neither our counsel, counsel for
Viacom International nor counsel for any initial purchaser will express any
opinion as to federal or state laws relating to fraudulent transfers.
Ranking
The 2001 senior debt securities will be senior unsecured obligations of
Viacom and will rank equally in right of payment with all of Viacom's other
unsecured and unsubordinated indebtedness. The guarantees on the 2001 senior
debt securities will be senior unsecured obligations of Viacom International and
will rank equally in right of payment with all of Viacom International's other
unsecured and unsubordinated indebtedness.
The 2001 senior subordinated debt securities will be senior unsecured
subordinated obligations of Viacom and will be subordinated in right of payment
to Viacom's senior indebtedness. The guarantees on the 2001 senior subordinated
debt securities will be senior unsecured subordinated obligations of Viacom
International and will be subordinated in right of payment to Viacom
International's senior indebtedness.
The 1995 senior debt securities will be senior unsecured obligations of
Viacom and will rank equally in right of payment with all of Viacom's other
unsecured and unsubordinated indebtedness. The guarantees on the 1995 senior
debt securities will be senior unsecured obligations of Viacom International and
will rank equally in right of payment will all of Viacom International's other
unsecured and unsubordinated indebtedness.
The debt securities and the guarantees will be 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
debt indentures do 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 a 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 debt securities, or Viacom
International's payment obligations under the guarantees. The debt securities
(whether senior or subordinated obligations of Viacom) will be structurally
subordinated to all obligations of Viacom's subsidiaries (other than Viacom
International, to the extent such debt securities are guaranteed) including
claims with respect to trade payables. The guarantees (whether senior or
subordinated obligations of Viacom International) 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
debt securities of Viacom will have a junior position to the
7
claims of creditors of Viacom's subsidiaries (other than Viacom International,
to the extent such debt securities are guaranteed) on the assets and earnings of
such subsidiaries. Holders of guarantees of Viacom International, if any, 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, Viacom's
subsidiaries, other than Viacom International, had approximately $2.3 billion of
indebtedness outstanding, while Viacom International's subsidiaries had
approximately $1.4 billion of indebtedness outstanding.
Global Securities
Viacom may issue debt securities of a series, in whole or in part, in
the form of one or more global securities and will deposit them with or on
behalf of a depositary identified in the prospectus supplement relating to that
series. Viacom may issue global securities in fully registered or bearer form
and in either temporary or permanent form. Unless and until it is exchanged in
whole or in part, for the individual debt securities represented thereby, a
global security may only be transferred among the depositary, its nominees and
any successors.
The specific terms of the depositary arrangement relating to a series
of debt securities will be described in the prospectus supplement relating to
that series. It is anticipated that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a global security, the depositary for the global
security or its nominee will credit on its book-entry registration and transfer
system the principal amounts of the individual debt securities represented by
the global security to the accounts of persons that have accounts with the
depositary. The accounts will be designated by the dealers, underwriters or
agents with respect to the debt securities or by Viacom if the debt securities
are offered and sold directly by it. Ownership of beneficial interests in a
global security will be limited to persons that have accounts with the
applicable depositary participants or persons that hold interests through these
participants. Ownership of beneficial interests in a global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by:
o the applicable depositary or its nominee, with respect to
interests of depositary participants; and
o the records of depositary participants, with respect to interests
of persons other than depositary participants.
The laws of some states require that purchasers of securities take
physical delivery of the securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a global security.
So long as the depositary for a global security or its nominee is the
registered owner of that global security, the depositary or the nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable debt indenture. Except as
provided below, owners of beneficial interests in a global security will:
o not be entitled to have any of the individual debt securities of
the series represented by the global security registered in their
names;
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o not receive or be entitled to receive physical delivery of any
debt security of that series in definitive form; and
o not be considered the owners or holders thereof under the
applicable 2001 debt indenture governing the debt securities.
9
DESCRIPTION OF THE 2001 DEBT SECURITIES
Further Issues
Not all 2001 debt securities of any one series need be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the holders, for issuances of additional 2001 debt securities of such
series.
Payment and Paying Agents
Payments of principal of, any premium on, and any interest on
individual 2001 debt securities represented by a global security registered in
the name of a depositary or its nominee will be made to the depositary or its
nominee as the registered owner of the global security representing the 2001
debt securities. Neither Viacom, the 2001 debt trustee, any paying agent, nor
the security registrar for the 2001 debt securities will have any responsibility
or liability for the records relating to or payments made on account of
beneficial ownership interests of the global security for the 2001 debt
securities or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
Viacom expects that the depositary for a series of 2001 debt securities
or its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent global security representing any of the 2001 debt
securities, will immediately credit participants' accounts with payments in
amounts proportionate to their beneficial interests in the principal amount of
the global security for the 2001 debt securities as shown on the records of the
depositary or its nominee. Viacom also expects that payments by participants to
owners of beneficial interests in the global security held through the
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name." The payments will be the responsibility of
those participants.
Merger, Consolidation or Sale of Assets
Under the terms of the 2001 debt indentures, Viacom and Viacom
International generally would be permitted to consolidate or merge with another
entity or to sell all or substantially all of our respective assets to another
entity, subject to Viacom and Viacom International meeting all of the following
conditions:
o the resulting entity (other than Viacom or Viacom International)
must agree through a supplemental indenture to be legally
responsible for the 2001 debt securities;
o immediately following the consolidation, merger, sale or
conveyance, no Event of Default (as defined below) shall have
occurred and be continuing;
o the surviving entity to the transaction must be a corporation
organized under the laws of a state of the United States;
o Viacom or Viacom International, as the case may be, must deliver
certain certificates and documents to the 2001 debt trustee; and
o Viacom and Viacom International, if applicable, must satisfy any
other requirements specified in the prospectus supplement relating
to a particular series of 2001 debt securities.
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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.
In the event that Viacom or Viacom International consolidates or merges
with another entity or sells all or substantially all of its assets to another
entity, the surviving entity shall be substituted for Viacom or Viacom
International, as the case may be, under the 2001 debt indentures and Viacom or
Viacom International, as the case may be, shall be discharged from all of its
obligations under the 2001 debt indentures.
Limitations on Liens
We covenant in the 2001 debt indentures that we will not create, assume
or permit any Lien on any of our properties or assets, unless we secure the 2001
debt 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 and leaseback arrangement. See "-- Limitations on Sale and Leaseback
Transactions" below. The restrictions do not apply to Capitalized Leases or
Indebtedness that is secured by:
o Liens existing, in the case of any 2001 debt securities, on the
date such 2001 debt securities are issued;
o 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);
o Liens in favor of us or our Subsidiaries; and
o 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 2001 debt indentures 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 on the date the 2001
debt securities are issued 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:
o the sale and leaseback arrangement involves a lease for a term of
not more than three years;
o the sale and leaseback arrangement is entered into between us and
any Subsidiary or between our Subsidiaries;
o 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
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pursuant to the first paragraph under "Limitations on Liens"
without having to secure equally and ratably the 2001 debt
securities;
o 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 2001 debt securities and
that is not debt to us or a Subsidiary, or (ii) the purchase or
development of other comparable property; or
o 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 2001 debt indentures 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); or (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 2001 debt indentures.
The term "Principal Property" is defined in the 2001 debt indentures 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 that 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
Holders of 2001 debt securities will have specified rights if an Event
of Default (as defined below) occurs in respect of the 2001 debt securities of
that series, as described below.
The term "Event of Default" in respect of the 2001 debt securities of a
particular series means any of the following:
o Viacom does not pay interest on a 2001 debt security of such
series within 30 days of its due date;
o Viacom does not pay the principal of or any premium on a 2001 debt
security of such series when due and payable, at its maturity, or
upon its acceleration or redemption;
o Viacom remains in breach of a covenant or warranty in respect of
an indenture for 60 days after Viacom receives a written notice of
default; the notice must be sent by either the 2001 debt trustee
or holders of at least 25% in principal amount of a series of
outstanding 2001 debt securities; or
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o Viacom or Viacom International, if guarantees are issued, files
for bankruptcy, or other events of bankruptcy specified in the
applicable 2001debt indenture, insolvency or reorganization occur.
If an Event of Default has occurred, the 2001 debt trustee or the
holders of at least 25% in principal amount of the 2001 debt securities of the
affected series may declare the entire unpaid principal amount (and premium, if
any) of, and all the accrued interest on, the 2001 debt securities of that
series to be due and immediately payable. This is called a declaration of
acceleration of maturity. There is no action on the part of the 2001 debt
trustee or any holder of 2001 debt securities required for such declaration if
the Event of Default is a bankruptcy, insolvency or reorganization. Holders of a
majority in principal amount of the 2001 debt securities of a series may also
waive certain past defaults under the 2001 debt indenture on behalf of all of
the holders of such series of 2001 debt securities. A declaration of
acceleration of maturity may be canceled, under specified circumstances, by the
holders of at least a majority in principal amount of a series of 2001 debt
securities and the 2001 debt trustee.
Except in cases of default, where the 2001 debt trustee has special
duties, a 2001 debt trustee is not required to take any action under a 2001 debt
indenture at the request of holders unless the holders offer the 2001 debt
trustee reasonable protection from expenses and liability satisfactory to the
2001 debt trustee. If a reasonable indemnity is provided, the holders of a
majority in principal amount of a series of 2001 debt securities may direct the
time, method and place of conducting any lawsuit or other formal legal action
seeking any remedy available to the debt trustee. The 2001 debt trustee may
refuse to follow those directions in certain circumstances specified in the
applicable 2001 debt indenture. 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 2001 debt trustee and bring a
lawsuit or other formal legal action or take other steps to enforce their rights
or protect their interests relating to the 2001 debt securities, the following
must occur:
o holders must give the 2001 debt trustee written notice that an
Event of Default has occurred and remains uncured;
o holders of at least 25% in principal amount of the outstanding
2001 debt securities of a series must make a written request that
the 2001 debt trustee take action because of the default and must
offer the 2001 debt trustee indemnity satisfactory to the 2001
debt trustee against the cost and other liabilities of taking that
action;
o the 2001 debt trustee must have failed to take action for 60 days
after receipt of the notice and offer of indemnity; and
o holders of a majority in principal amount of the 2001 debt
securities of a series must not have given the 2001 debt trustee a
direction inconsistent with the above notice for a period of 60
days after the debt trustee has received the notice.
Holders are, however, entitled at any time to bring a lawsuit for the
payment of money due on the 2001 debt securities on or after the due date.
Modification of the 2001 Debt Indentures
The 2001 debt indentures provide that Viacom, Viacom International, if
applicable, and the 2001 debt trustee may, without the consent of any holders of
2001 debt securities, enter into supplemental indentures for the purposes, among
other things, of:
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o adding to Viacom's or Viacom International's covenants;
o adding additional events of default;
o change or eliminate any provisions of the 2001 debt indenture so
long as there are no holders entitled to the benefit of the
provisions;
o establishing the form or terms of any series of 2001 debt
securities; or
o curing ambiguities or inconsistencies in the 2001 debt indenture
or making any other provisions with respect to matters or
questions arising under the 2001 debt indentures.
With specific exceptions, the 2001 debt indenture or the rights of the
holders of the 2001 debt securities may be modified by Viacom, Viacom
International and the 2001 debt trustee with the consent of the holders of a
majority in aggregate principal amount of the 2001 debt securities of each
series affected by the modification then outstanding, but no modification may be
made without the consent of the holders of each outstanding 2001 debt security
affected which would:
o change the maturity of any payment of principal of, or any premium
on, or any installment of interest on any 2001 debt security;
o change the terms of any sinking fund with respect to any 2001 debt
security;
o reduce the principal amount of, or the interest or any premium on,
any 2001 debt security upon redemption or repayment at the option
of the holder;
o change any obligation of Viacom to pay additional amounts;
o change any place of payment where, or the currency in which, any
2001 debt security or any premium or interest is payable;
o impair the right to sue for the enforcement of any payment on or
with respect to any 2001 debt security;
o reduce the percentage in principal amount of outstanding 2001 debt
securities of any series required to consent to any supplemental
indenture, any waiver of compliance with provisions of a 2001 debt
indenture or specific defaults and their consequences provided for
in the 2001 debt indenture, or otherwise modify the sections in
the 2001 debt indenture relating to these consents; or
o reduce the obligations of Viacom International, if any, in respect
of the due and punctual payment of principal, premium and
interest, if any.
Defeasance and Covenant Defeasance
Viacom 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 2001 debt securities (except as otherwise
provided in the 2001 debt indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants that are described in the 2001
debt indentures ("covenant defeasance"), upon the deposit with the 2001 debt
trustee, in trust for such purpose, of money and/or government obligations that
through the payment of principal and interest in accordance with their
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terms will provide money in an amount sufficient, without reinvestment, to pay
the principal of, premium, if any, and interest on the 2001 debt securities of
such series to maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous senior payments thereon. As a condition to defeasance
or covenant defeasance, Viacom must deliver to the 2001 debt trustee an opinion
of counsel to the effect that the holders of the 2001 debt securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance or
covenant defeasance had not occurred. Such opinion of counsel, in the case of
defeasance under clause (i) above, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the 2001 debt indenture.
Viacom may exercise its defeasance option with respect to the 2001 debt
securities of any series notwithstanding its prior exercise of its covenant
defeasance option. If Viacom exercises its defeasance option, payment of the
2001 debt securities of such series may not be accelerated because of an event
of default and the guarantees relating to such 2001 debt securities will cease
to exist. If Viacom exercises its covenant defeasance option, payment of the
2001 debt securities of such series may not be accelerated by reference to any
covenant from which Viacom is released as described under clause (ii) above.
However, if acceleration were to occur for other reasons, the realizable value
at the acceleration date of the money and government obligations in the
defeasance trust could be less than the principal and interest then due on the
2001 debt 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
Notices to holders of 2001 debt 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 2001 debt trustees and any
agent of us, may treat the registered owner of any registered 2001 debt security
as the absolute owner thereof (whether or not the 2001 debt security shall be
overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes.
Replacement of 2001 Debt Securities
We will replace any mutilated 2001 debt security at the expense of the
holders upon surrender to the trustee. We will replace 2001 debt 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 2001 debt security, an indemnity or
security satisfactory to us and the 2001 debt trustee may be required at the
expense of the holder of the 2001 debt security before a replacement 2001 debt
security will be issued.
Governing Law
The 2001 debt indentures, the 2001 debt securities and the guarantees
will be governed by, and construed in accordance with, the laws of the State of
New York.
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Concerning the 2001 Debt Trustees
Viacom will identify the 2001 debt trustees in the relevant prospectus
supplement. In specific instances, Viacom or the holders of a majority of the
then outstanding principal amount of the 2001 debt securities issued under a
2001 debt indenture may remove the 2001 debt trustee and appoint a successor
trustee. The 2001 debt trustee may become the owner or pledgee of any of the
2001 debt securities with the same rights, subject to conflict of interest
restrictions, it would have if it were not the 2001 debt trustee. The 2001 debt
trustee and any successor trustee must be eligible to act as trustee under the
Section 310(a)(1) of the Trust Indenture Act of 1939 and shall have a combined
capital and surplus of at least $50,000,000 and be subject to examination by
federal or state authority. Subject to applicable law relating to conflicts of
interest, the 2001 debt trustee may also serve as trustee under other indentures
relating to securities issued by Viacom or its affiliated companies and may
engage in commercial transactions with Viacom and its affiliated companies. The
initial 2001 debt trustee under each 2001 debt indenture is The Bank of New
York.
2001 Senior Debt Securities
Viacom will describe the specific terms of the 2001 senior debt
securities offered by any prospectus supplement and the extent, if any, to which
the general provisions summarized in this description may apply to any series of
its 2001 senior debt securities in the prospectus supplement relating to that
series.
2001 Senior Subordinated Debt Securities
In addition to the provisions previously described in this prospectus
and applicable to all 2001 debt securities, the following description of
Viacom's 2001 senior subordinated debt securities summarizes the additional
terms and provisions of its 2001 senior subordinated debt securities to which
any prospectus supplement may relate. The specific terms of Viacom's 2001 senior
subordinated debt securities offered by any prospectus supplement and the
extent, if any, to which the general provisions summarized below may apply to
any series of 2001 senior subordinated debt securities will be described in the
prospectus supplement relating to that series.
Subordination. The 2001 senior subordinated debt securities will be
subordinated in right of payment to Viacom's senior indebtedness to the extent
set forth in the applicable prospectus supplement.
The payment of the principal of, premium, if any, and interest on the
2001 senior subordinated debt securities will be subordinated in right of
payment to the prior payment in full of all of Viacom's senior indebtedness.
Viacom may not make payment of principal of, premium, if any, or interest on the
2001 senior subordinated debt securities and may not acquire, or make payment on
account of any sinking fund for, the 2001 senior subordinated debt securities
unless full payment of amounts then due for principal, premium, if any, and
interest on all senior indebtedness by reason of the maturity thereof has been
made or duly provided for in cash or in a manner satisfactory to the holders of
the senior indebtedness. In addition, the senior subordinated indenture provides
that if a default has occurred giving the holders of the senior indebtedness the
right to accelerate the maturity of that senior indebtedness, or an event has
occurred which, with the giving of notice, or lapse of time, or both, would
constitute an event of default, then unless and until that event has been cured
or waived or has ceased to exist, no payment of principal, premium, if any, or
interest on the 2001 senior subordinated debt securities and no acquisition of,
or payment on account of a sinking fund for, the 2001 senior subordinated debt
securities may be made. Viacom will give prompt written notice to the 2001
senior subordinated trustee of any default under any senior indebtedness or
under any agreement pursuant to which senior indebtedness may have been issued.
The 2001 senior subordinated indenture provisions described in this paragraph,
however, do
16
not prevent Viacom from making a sinking fund payment with 2001 senior
subordinated debt securities acquired prior to the maturity of senior
indebtedness or, in the case of default, prior to the default and notice
thereof. Upon any distribution of assets in connection with Viacom's
dissolution, liquidation or reorganization, all senior indebtedness must be paid
in full before the holders of the 2001 senior subordinated debt securities are
entitled to any payments whatsoever. As a result of these subordination
provisions, in the event of Viacom's insolvency, holders of the 2001 senior
subordinated debt securities may recover ratably less than the holders of
Viacom's senior indebtedness.
For purposes of the description of the 2001 senior subordinated debt
securities, the term "Senior Indebtedness" of the Company or the Guarantor, as
the case may be, means the principal of and premium, if any, and interest on the
following, whether outstanding on the date of execution of the senior
subordinated indenture or incurred or created after the execution:
o indebtedness for money borrowed by it, or evidenced by securities,
other than the 2001 senior subordinated debt securities or any
other indebtedness which is subordinate to the 2001 senior
subordinated debt securities
o obligations with respect to letters of credit;
o indebtedness constituting a guarantee of indebtedness of others,
other than any subordinated guarantees; or
o obligations under Capitalized Leases (as defined below) (other
than (x) telecommunications equipment, including satellite
transponders, and (y) theme park equipment and attractions);
o any obligation of a third party if secured by a lien on assets;
o renewals, extensions or refundings of any of the indebtedness
referred to in the preceding bullet points unless, in the case of
any particular indebtedness, renewal, extension or refunding,
under the express provisions of the instrument creating or
evidencing the same, or pursuant to which the same is outstanding,
the indebtedness or the renewal, extension or refunding thereof is
not superior in right of payment to the 2001 senior subordinated
debt securities.
Senior Indebtedness of the Company or the Guarantor, as the case may be, will
not include any obligation of the Company or the Guarantor (i) to any subsidiary
of the Company or the Guarantor or to any person with respect to which the
Company or the Guarantor 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.
As of March 31, 2001, a total of approximately $10.2 billion of
Viacom's indebtedness was Senior Indebtedness and approximately $647 million of
Viacom International's indebtedness was Senior Indebtedness.
Certain Definitions
The following definitions are applicable to the 2001 debt indentures:
"Capitalized Lease" means any obligation of a person to pay rent or
other amounts incurred with respect to real property or equipment acquired or
leased by such person and used in its business that is required to be recorded
as a capital lease in accordance with generally accepted accounting principles
consistently applied as in effect from time to time.
"Indebtedness" of any person means, without duplication (i) any
obligation of such person for money borrowed, (ii) any obligation of such person
evidenced by bonds, debentures, notes or other similar instruments, (iii) any
reimbursement obligation of such person in respect of letters of credit or
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other similar instruments which support financial obligations which would
otherwise become Indebtedness, (iv) any obligation of such person under
Capitalized Leases (other than in respect of (x) telecommunications equipment
including, without limitation, satellite transponders, and (y) theme park
equipment and attractions), and (v) any obligation of any third party to the
extent secured by a Lien on the assets of such person; provided, however, that
"Indebtedness" of such person shall not include any obligation of such person
(i) to any Subsidiary of such person or to any person with respect to which such
person is a Subsidiary or (ii) specifically with respect to the production,
distribution or acquisition of motion pictures or other programming rights,
talent or publishing rights. 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).
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DESCRIPTION OF THE 1995 SENIOR DEBT SECURITIES
Further Issues
We may from time to time without notice to, or the consent of, the
holders of a series of 1995 senior debt securities, create and issue further
1995 senior debt securities of the same series, equal in rank to the 1995 senior
debt securities in all respects (or in all respects except for the payment of
interest accruing prior to the issue date of the new notes or except for the
first payment of interest following the issue date of the new notes) so that the
new notes may be consolidated and form a single series with the relevant series
of 1995 senior debt securities and have the same terms as to status, redemption
or otherwise as the relevant series of 1995 senior debt securities.
Merger, Consolidation or Sale of Assets
Under the terms of the 1995 senior 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:
o 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;
o 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 any state of the United States;
o 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 1995
senior indenture; and
o we or Viacom International must deliver specified certificates and
documents to the 1995 senior debt 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.
In the event that Viacom or Viacom International consolidates or merges
with another entity or sells all or substantially all of its assets to another
entity, the surviving entity shall be substituted for Viacom or Viacom
International, as the case may be, under the 1995 senior indenture and Viacom or
Viacom International, as the case may be, shall be discharged from all of its
obligations under the 1995 senior indenture.
Limitations on Liens
We covenant in the 1995 senior indenture that we will not create,
assume or permit any Lien on any of our properties or assets, unless we secure
the 1995 senior debt 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 and
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leaseback arrangement. See "-- Limitations on Sale and Leaseback Transactions"
below. The restrictions do not apply to Capitalized Leases or Indebtedness that
is secured by:
o Liens existing, in the case of any 1995 senior debt securities, on
the date such 1995 senior debt securities are issued;
o 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);
o Liens in favor of us or our Subsidiaries; and
o 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 1995 senior 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 on the date the 1995
senior debt securities are issued 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:
o the sale and leaseback arrangement involves a lease for a term of
not more than three years;
o the sale and leaseback arrangement is entered into between us and
any Subsidiary or between our Subsidiaries;
o 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 1995 senior debt securities;
o 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 1995 senior debt securities
and that is not debt to us or a Subsidiary, or (ii) the purchase
or development of other comparable property; or
o 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 1995 senior 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); or (b) the present value of
the total net amount of rent payments to be made under the lease during its
remaining term, discounted at
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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 1995 senior indenture.
The term "Principal Property" is defined in the 1995 senior 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 that 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
Holders of 1995 senior debt securities have specified rights if an
Event of Default occurs in respect of the 1995 senior debt securities of that
series, as described below.
The term "Event of Default" in respect of the 1995 senior debt
securities means any of the following:
o we do not pay interest on a 1995 senior debt security of such
series within 30 days of its due date;
o we do not pay the principal of or any premium on a 1995 senior
debt security of such series on its due date;
o we remain in breach of a covenant or warranty in respect of the
1995 senior 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 1995 senior debt 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.
If an Event of Default has occurred, the 1995 senior debt trustee or
the holders of at least 25% in principal amount of the 1995 senior debt
securities of the affected series may declare the entire principal amount and
premium, if any, and all the accrued interest on, the 1995 senior debt
securities of that series to be due and immediately payable. This is called a
declaration of acceleration of maturity. There is no action on the part of the
1995 senior debt trustee or any holder of 1995 senior debt securities required
for such declaration if the Event of Default is a bankruptcy, insolvency or
reorganization.
Holders of a majority in principal amount of the 1995 senior debt
securities of a series may also waive certain past defaults under the 1995
senior indenture on behalf of all of the holders of such series of 1995 senior
debt securities. A declaration of acceleration of maturity may be canceled,
under specified
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circumstances, by the holders of at least a majority in principal amount of a
series of 1995 senior debt securities.
Except in cases of default, where the 1995 senior debt trustee has
special duties, the 1995 senior debt trustee is not required to take any action
under the 1995 senior indenture at the request of holders unless the holders
offer the 1995 senior debt trustee reasonable protection from expenses and
liability satisfactory to the 1995 senior debt trustee. If a reasonable
indemnity is provided, the holders of a majority in principal amount of a series
of 1995 senior debt securities may direct the time, method and place of
conducting any lawsuit or other formal legal action seeking any remedy available
to the 1995 senior debt trustee. The 1995 senior debt trustee may refuse to
follow those directions in specified circumstances. No delay or omission in
exercising any right or remedy will be treated as a waiver of the right, remedy
or Event of Default.
Before holders are allowed to bypass the 1995 senior debt trustee and
bring a lawsuit or other formal legal action or take other steps to enforce
their rights or protect their interests relating to the 1995 senior debt
securities, the following must occur:
o holders must give the 1995 senior debt trustee written notice that
an Event of Default has occurred and remains uncured;
o holders of at least 25% in principal amount of the outstanding
1995 senior debt securities of a series must make a written
request that the 1995 senior debt trustee take action because of
the default and must offer the 1995 senior debt trustee indemnity
satisfactory to the 1995 senior debt trustee against the cost and
other liabilities of taking that action;
o the 1995 senior debt trustee must have failed to take action for
60 days after receipt of the notice and offer of indemnity; and
o holders of a majority in principal amount of the 1995 senior debt
securities of a series must not have given the 1995 senior debt
trustee a direction inconsistent with the above notice.
Holders of 1995 senior debt securities are, however, entitled at any
time to bring a lawsuit for the payment of money due on those 1995 senior debt
securities on or after the due date.
We are required to furnish to the 1995 senior debt trustee an annual
statement as to our performance of our obligations under the 1995 senior
indenture and as to any default in such performance. We are also required to
notify the 1995 senior debt trustee of any event that is, or after notice or
lapse of time or both would become, an Event of Default.
Payment and Paying Agents
Unless otherwise specified in the applicable prospectus supplement,
principal of, premium, if any, and interest on the 1995 senior debt 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. Unless otherwise specified in the applicable prospectus supplement, we
will pay interest on the 1995 senior debt securities on any interest payment
date to the person in whose name the 1995 senior debt security (or predecessor
1995 senior debt security) is registered at the close of business on the regular
record date for such interest.
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Unless otherwise specified in the applicable prospectus supplement, the
corporate trust office of the 1995 senior debt trustee will be designated as our
paying agent for payments with respect to the 1995 senior debt 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.
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
1995 senior debt 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 1995 senior debt security may thereafter look only to us and
Viacom International for that payment.
Meetings, Modification and Waiver
The 1995 senior debt indenture provides that Viacom, Viacom
International, if applicable, and the 1995 senior debt trustee may, without the
consent of any holders of 1995 senior debt securities, enter into supplemental
indentures for the purposes, among other things, of:
o adding to Viacom or Viacom International's covenants;
o adding additional events of default;
o change or eliminate any provisions of the 1995 debt indenture so
long as there are no holders entitled to the benefit of the
provisions;
o establishing the form or terms of any series of debt securities;
or
o curing ambiguities or inconsistencies in the debt indenture or
making other provisions.
Modifications and amendments of the 1995 senior indenture may be made
by us, Viacom International, as guarantor, and the 1995 senior debt trustee with
the consent of the holders of not less than a majority in aggregate principal
amount of the outstanding 1995 senior debt 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 1995
senior debt security affected thereby, (a) change the stated maturity of the
principal of, or any installment of principal of or interest on, any 1995 senior
debt security or the terms of any sinking fund or analogous payment with respect
to any 1995 senior debt security, (b) reduce the principal amount of, or premium
or interest on, any 1995 senior debt security, (c) change our obligation to pay
additional amounts, (d) reduce the amount of principal of an original issue
discount 1995 senior debt 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 1995 senior debt 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 1995 senior debt security,
(g) reduce the percentage in principal amount of outstanding 1995 senior debt
securities of any series, the consent of whose holders is required for
modification or amendment of the 1995 senior indenture or for waiver of
compliance with certain provisions of the 1995 senior indenture or for waiver of
certain defaults, (h) reduce the requirements contained in the 1995 senior
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 1995 senior
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 1995 senior debt security or any additional amounts in respect thereof.
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The holders of at least a majority in aggregate principal amount of the
outstanding 1995 senior debt securities of a series may, on behalf of the
holders of all the 1995 senior debt securities of that series, waive, insofar as
that series is concerned, our compliance with specified provisions of the 1995
senior indenture. The holders of not less than a majority in aggregate principal
amount of the outstanding 1995 senior debt securities of a series may, on behalf
of all holders of 1995 senior debt securities of that series, waive any past
default under the 1995 senior indenture with respect to 1995 senior debt
securities of that series, except a default (a) in the payment of principal of
or any premium or interest on any 1995 senior debt security of such series or
(b) in respect of any other provision of the 1995 senior indenture that cannot
be modified or amended without the consent of the holder of each outstanding
1995 senior debt security of such series affected thereby.
The 1995 senior indenture provides that, in determining whether the
holders of the requisite principal amount of the outstanding 1995 senior debt
securities have given any request, demand, authorization, direction, notice,
consent or waiver thereunder or are present at a meeting of holders of 1995
senior debt 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 1995 senior indenture contains provisions for convening meetings of
the holders of 1995 senior debt securities of any or all series. A meeting may
be called at any time by the 1995 senior debt trustee, and also, upon request,
by us or the holders of at least 33 1/3% in aggregate principal amount of the
outstanding 1995 senior debt 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 1995 senior debt 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 1995
senior debt securities of that series; provided, however, that, except for any
consent that must be given by the holder of each outstanding 1995 senior debt
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 1995 senior debt
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 1995
senior debt securities of that series.
Any resolution passed or decision taken at any meeting of holders of
1995 senior debt securities of any series duly held in accordance with the 1995
senior indenture will be binding on all holders of 1995 senior debt 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 1995 senior debt 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 1995 senior debt securities of
a series, the persons holding or representing such specified percentage in
principal amount of the outstanding 1995 senior debt 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 1995 senior debt securities (except as
otherwise provided in the 1995 senior indenture) ("defeasance") or (ii) to be
released from our obligations with respect to certain covenants that are
described in the 1995 senior indenture
24
("covenant defeasance"), upon the deposit with the 1995 senior debt 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 1995 senior debt securities
of such series to maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous senior payments thereon. As a condition to defeasance
or covenant defeasance, we must deliver to the 1995 senior debt trustee an
opinion of counsel to the effect that the holders of the 1995 senior debt
securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred. Such opinion of
counsel, in the case of defeasance under clause (i) above, must refer to and be
based upon a ruling of the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the 1995 senior
indenture.
We may exercise our defeasance option with respect to the 1995 senior
debt securities of any series notwithstanding the prior exercise of our covenant
defeasance option. If we exercise our defeasance option, payment of the 1995
senior debt securities of such series may not be accelerated because of an event
of default and the guarantees relating to such 1995 senior debt securities will
cease to exist. If we exercise our covenant defeasance option, payment of the
1995 senior debt 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
1995 senior debt 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
Notices to holders of 1995 senior debt 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 1995 senior debt trustee
and any agent of us, may treat the registered owner of any registered 1995
senior debt security as the absolute owner thereof (whether or not the 1995
senior debt security shall be overdue and notwithstanding any notice to the
contrary) for the purpose of making payment and for all other purposes.
Replacement of 1995 Senior Debt Securities
We will replace any mutilated 1995 senior debt security at the expense
of the holders upon surrender to the trustee. We will replace 1995 senior debt
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 1995 senior debt
security, an indemnity or security satisfactory to us and the 1995 senior debt
trustee may be required at the expense of the holder of the 1995 senior debt
security before a replacement 1995 senior debt security will be issued.
Governing Law
The 1995 senior indenture, the 1995 senior debt securities and the
guarantees will be governed by, and construed in accordance with, the laws of
the State of New York.
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Regarding the 1995 Senior Debt Trustee
We and Viacom International maintain deposit accounts and banking and
borrowing relations with Citibank, N.A., the 1995 senior debt trustee under the
1995 senior indenture, and such 1995 senior debt trustee is currently a lender
to us and Viacom International and certain of our other subsidiaries. We may
remove the 1995 senior debt trustee at any time with respect to the 1995 senior
debt securities of any series, provided that we immediately appoint a successor
trustee meeting the requirements for trustees specified in the 1995 senior
indenture and provided further that no default with respect to such 1995 senior
debt securities has occurred and is continuing.
Certain Definitions
The following definitions are applicable to the 1995 senior 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 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).
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DESCRIPTION OF PREFERRED STOCK
The following description sets forth certain general terms of preferred
stock which Viacom may issue. The terms of any series of the preferred stock
will be described in the applicable prospectus supplement relating to the
preferred stock being offered. The description set forth below and in any
prospectus supplement is not complete, and is subject to, and qualified in its
entirety by reference to, Viacom's restated certificate of incorporation, and
the certificate of designations relating to each particular series of the
preferred stock, which was or will be filed with the SEC at or before the
issuance of the series of preferred stock.
Terms of the Preferred Stock
Under Viacom's restated certificate of incorporation Viacom is
authorized to issue up to 25,000,000 shares of preferred stock, par value $0.01
per share. The board of directors of Viacom has the authority, without approval
of the stockholders, to issue all of the shares of preferred stock which are
currently authorized in one or more series and to fix the number of shares and
the rights, preferences, privileges, qualifications, restrictions and
limitations of each series. As of March 31, 2001, Viacom had 25,000,000 shares
of preferred stock available for issuance.
The applicable prospectus supplement will describe the terms of each
series of preferred stock, including, where applicable, the following:
o the designation, stated value, liquidation preference and number
of shares offered;
o the offering price or prices;
o the dividend rate or rates, or method of calculation, the dividend
periods, the date on which dividends shall be payable and whether
dividends are cumulative or noncumulative and, if cumulative, the
dates from which dividends begin to accumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o any voting rights;
o whether the preferred stock will be issued in certificated or
book-entry form;
o whether the preferred stock will be listed on a national
securities exchange;
o information with respect to any book-entry procedures;
o a discussion of any material federal income tax and other special
considerations, procedures and limitations relating to the
preferred stock; and
o any additional rights, preferences, privileges, limitations and
restrictions of the preferred stock which are not inconsistent
with the provisions of the restated certificate of incorporation.
The preferred stock will be, when issued against payment, fully paid
and nonassessable. Holders will have no preemptive rights to subscribe for any
additional securities which Viacom may issue. Unless
27
otherwise specified in the applicable prospectus supplement, the shares of each
series of preferred stock will rank equally with all other outstanding series of
preferred stock issued by Viacom as to payment of dividends, other than with
respect to cumulation of dividends, and as to the distribution of assets upon
liquidation, dissolution, or winding up of Viacom. As of March 31, 2001, there
were no shares of Viacom's preferred stock outstanding. Each series of preferred
stock will rank senior to the common stock, and any other stock of Viacom that
is expressly made junior to that series of preferred stock.
Unless otherwise specified in the applicable prospectus supplement, The
Bank of New York will be the transfer agent, dividend disbursing agent and
registrar for the shares of the preferred stock.
Viacom's rights and the rights of holders of Viacom securities,
including the holders of preferred stock, to participate in the distribution of
assets of any subsidiary of Viacom upon its liquidation or recapitalization will
be subject to the prior claims of the subsidiary's creditors and preferred
stockholders, except to the extent Viacom may itself be a creditor with
recognized claims against the subsidiary or a holder of preferred stock of the
subsidiary.
Dividends and Distributions
Unless otherwise specified in the prospectus supplement, holders of
shares of the preferred stock will be entitled to receive, as, if and when
declared by the board of directors of Viacom or a duly authorized committee of
the board of directors, out of funds legally available for the payment of
dividends, cash dividends at the rate set forth in, or calculated in accordance
with the formula set forth in, the prospectus supplement relating to the
preferred stock being offered. Dividends on the preferred stock may be
cumulative or noncumulative as provided in the applicable prospectus supplement.
Dividends on the cumulative preferred stock will accumulate from the date of
original issue and will be payable as specified in the applicable prospectus
supplement. The applicable prospectus supplement will set forth the applicable
dividend period with respect to a dividend payment date. If the board of
directors of Viacom or a duly authorized committee of the board of directors
fails to declare a dividend on any series of noncumulative preferred stock for
any dividend period, Viacom will have no obligation to pay a dividend for that
period, whether or not dividends on that series of noncumulative preferred stock
are declared for any future dividend period.
No dividends will be declared or paid or set apart for payment on the
preferred stock of any series ranking, as to dividends, equally with or junior
to any other series of preferred stock for any period unless dividends have been
or are contemporaneously declared and paid or declared and a sum sufficient for
the payment of those dividends has been set apart for:
o in the case of cumulative preferred stock, all dividend periods
terminating on or before the date of payment of full cumulative
dividends; or
o in the case of noncumulative preferred stock, the immediately
preceding dividend period.
When dividends are not paid in full upon any series of preferred stock,
and any other preferred stock ranking equally as to dividends with that series
of preferred stock, all dividends declared upon shares of that series of
preferred stock and any other preferred stock ranking equally as to dividends
will be declared pro rata so that the amount of dividends declared per share on
that series of preferred stock and any other preferred stock ranking equally as
to dividends will in all cases bear to each other the same ratio that accrued
dividends per share on the shares of that series of preferred stock and the
other preferred stock bear to each other. In the case of noncumulative preferred
stock, any accrued dividends described in
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the immediately preceding paragraph will not include any cumulation in respect
of unpaid dividends for prior dividend periods.
Except as provided in the immediately preceding paragraph or the
applicable prospectus supplement unless full dividends on all outstanding shares
of any series of preferred stock have been declared and paid, in the case of a
series of cumulative preferred stock, for all past dividend periods, or in the
case of noncumulative preferred stock, for the immediately preceding dividend
period, Viacom may not declare dividends or pay or set aside for payment or
other distribution on any of its capital stock ranking junior to or equally with
that series of preferred stock as to dividends or upon liquidation, other than
dividends or distributions paid in shares of, or options, warrants or rights to
subscribe for or purchase shares of, the common stock of Viacom or other capital
stock of Viacom ranking junior to that series of preferred stock as to dividends
and upon liquidation, and other than in connection with the distribution or
trading of any of its capital stock, Viacom may not redeem, purchase or
otherwise acquire any of its capital stock ranking junior to or equally with
that series of preferred stock as to dividends or upon liquidation, for any
consideration or any moneys paid to or made available for a sinking fund for the
redemption of any shares of any of its capital stock, except by conversion or
exchange for capital stock of Viacom ranking junior to that series of preferred
stock as to dividends and upon liquidation.
Unless otherwise specified in the applicable prospectus supplement, the
amount of dividends payable for any period shorter than a full dividend period
shall be computed on the basis of twelve 30-day months, a 360-day year and the
actual number of days elapsed in any period of less than one month.
Liquidation Preference
Unless otherwise specified in the applicable prospectus supplement,
upon any voluntary or involuntary liquidation, dissolution or winding up of
Viacom, the holders of the preferred stock will have preference and priority
over the common stock of Viacom and any other class of stock of Viacom ranking
junior to the preferred stock upon liquidation, dissolution or winding up, for
payments out of or distributions of the assets of Viacom or proceeds from any
liquidation, of the amount per share set forth in the applicable prospectus
supplement plus all accrued and unpaid dividends, to the date of final
distribution to such holders. After any liquidating payment, the holders of
preferred stock will not be entitled to any other payments.
Redemption
If specified in the prospectus supplement relating to a series of
preferred stock being offered, Viacom may, at its option, at any time or from
time to time, redeem that series of preferred stock, in whole or in part, at the
redemption prices and on the dates set forth in the applicable prospectus
supplement.
If less than all outstanding shares of a series of preferred stock is
to be redeemed, the selection of the shares to be redeemed shall be determined
by lot or pro rata as may be determined to be equitable by the board of
directors of Viacom or a duly authorized committee of the board of directors.
From and after the redemption date, unless Viacom is in default in providing for
the payment of the redemption price, dividends shall cease to accrue on the
shares of that series of preferred stock called for redemption and all rights of
the holders shall cease, other than the right to receive the redemption price.
Voting Rights
Unless otherwise described in the applicable prospectus supplement,
holders of the preferred stock will have no voting rights except as required by
law.
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Conversion or Exchange Rights
The prospectus supplement relating to a series of preferred stock that
is convertible or exchangeable will state the terms on which shares of that
series are convertible or exchangeable into common stock, another series of
preferred stock or debt securities.
Preferred Stock Guarantees
The following description summarizes the general terms and provisions
of the preferred stock guarantees that may be executed and delivered by Viacom
International for the benefit of the holders from time to time of our preferred
stock. The terms and provisions of each preferred stock guarantee will be as set
forth in each preferred stock guarantee. This description is qualified in its
entirety by reference to the form of preferred stock guarantee agreement, which
is filed as an exhibit to the registration statement of which this prospectus
forms a part.
General
Pursuant to each preferred stock guarantee, Viacom International will
irrevocably and unconditionally agree to pay in full, to the holders of our
preferred stock, certain payments, to the extent not paid by us, [regardless of
any defense, right of set-off or counterclaim that we may have or assert].
Unless otherwise specified in the applicable prospectus supplement, the
following payments or distributions with respect to our preferred stock will be
subject to the preferred stock guarantee:
o the redemption price, including all accrued and unpaid dividends
to the date of redemption, with respect to any preferred stock
called for redemption by Viacom; and
o upon our voluntary or involuntary dissolution, winding-up or
termination, the aggregate of the liquidation amount and all
accrued and unpaid dividends on that preferred stock to the date
of payment, to the extent that we have funds available.
We will refer to these amounts as "guarantee payments" in this
description.
The obligation of Viacom International to make a guarantee payment may
be satisfied by direct payment of the required amounts by Viacom International
to the holders of preferred stock or by our payment of those amounts to those
holders. In the event of a redemption or our voluntary or involuntary
dissolution, winding-up or termination, the obligations of Viacom International
under any issued preferred stock guarantees will in the aggregate provide a full
and unconditional guarantee on a subordinated basis by Viacom International of
payments due on the preferred stock, as further described below.
Certain Covenants of Viacom International
Unless otherwise specified in the applicable prospectus supplement, so
long as any shares of preferred stock issued by us which are guaranteed by
Viacom International are outstanding, Viacom International will not make any
payment with respect to any capital stock issued by Viacom International, if at
such time it is in default with respect to the guarantee payments or other
payment obligations under the preferred stock guarantee.
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Amendments and Assignment
Except with respect to any changes that do not adversely affect the
rights of holders of preferred stock, in which case no consent will be required,
a preferred stock guarantee can be amended only with the prior approval of the
holders of not less than 66 2/3% of the preferred stock. The manner of obtaining
an approval of holders of the preferred stock will be described in an
accompanying prospectus supplement. All guarantees and agreements contained in a
preferred stock guarantee shall bind the successors, assignees, receivers,
trustees and representatives of Viacom International and shall inure to the
benefit of the holders of our preferred stock then outstanding. Except in
connection with a consolidation, merger or sale involving Viacom that is
permitted under the preferred stock guarantee agreement, Viacom International
may not assign its obligations under any preferred stock guarantee.
Termination of the Preferred Stock Guarantees
Each preferred stock guarantee will terminate and be of no further
force and effect as to any series of our preferred stock upon full payment of
the redemption price of all shares of preferred stock of that series, or upon
the full payment of amounts payable upon our liquidation. Notwithstanding the
foregoing, each preferred stock guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of our preferred
stock must restore payment of any sums paid under such preferred stock or such
guarantee.
Status of the Preferred Stock Guarantees
The obligations of Viacom International under each preferred stock
guarantee to make any guarantee payments will be an unsecured obligation of
Viacom International and will rank:
o subordinate and junior in right of payment to all of Viacom
International's other liabilities, except those made pari passu or
subordinate by their terms,
o senior to all capital stock at any time issued by Viacom
International and to any guarantee now or hereafter entered into
by Viacom International in respect of any of its capital stock,
and
o proportionally and equally with each other preferred stock
guarantee.
Each preferred stock guarantee is a guarantee of payment and not of
collection. A guaranteed party may institute a legal proceeding directly against
the guarantor to enforce its rights under the guarantee without first
instituting a legal proceeding against any other person or entity. Any holder of
our preferred stock may institute a legal proceeding directly against Viacom
International to enforce its rights under a preferred stock guarantee, without
first instituting a legal proceeding against us or any other person or entity.
Limitation of Guarantor's Liability
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. For a discussion of fraudulent conveyance laws, as
applicable to upstream guarantees, such as the preferred stock guarantees, see
"General Description of the Debt Securities -- Guarantees."
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Governing Law
The preferred stock guarantees will be governed by, and construed in
accordance with, the laws of the State of New York.
DESCRIPTION OF COMMON STOCK
The authorized common stock of Viacom as set forth in its restated
certificate of incorporation consists of 750,000,000 shares of Viacom Class A
common stock and 10,000,000,000 shares of Viacom Class B common stock. Viacom is
not registering with the SEC and is therefore not permitted to offer or sell any
shares of Viacom Class A common stock pursuant to the registration statement of
which this prospectus is a part. Viacom is only registering with the Securities
and Exchange Commission shares of Viacom Class B common stock as may from time
to time be issued upon conversion of 2001 senior debt securities, 2001 senior
subordinated debt securities, 1995 senior debt securities or preferred stock.
Viacom Class A Common Stock
As of March 31, 2001, there were approximately 137,500,000 shares of
Viacom Class A common stock issued and outstanding. Shares of Viacom Class A
common stock are not redeemable. Holders of shares of Viacom Class A common
stock are entitled to one vote per share.
Viacom Class B Common Stock
Viacom Class B common stock has rights, privileges, limitations,
restrictions and qualifications identical to Viacom Class A common stock except
that shares of Viacom Class B common stock have no voting rights other than
those required by the Delaware General Corporation Law. As of March 31, 2001,
there were approximately 1,644,700,000 shares of Viacom Class B common stock
issued and outstanding. Shares of Viacom Class B common stock are not
redeemable.
Voting and Other Rights of Viacom Common Stock
Voting Rights. Under Viacom's restated certificate of incorporation,
except as noted below or otherwise required by the Delaware General Corporation
Law, holders of the outstanding shares of Viacom Class A common stock vote
together with the holders of the outstanding shares of all other classes of
capital stock of Viacom entitled to vote, without regard to class. At the
present time, however, there are no outstanding shares of any other class of
capital stock of Viacom entitled to vote. Under Viacom's restated certificate of
incorporation:
o each holder of an outstanding share of Viacom Class A common stock
is entitled to cast one vote for each share registered in the name
of the holder, and
o the affirmative vote of the holders of a majority of the
outstanding shares of Viacom Class A common stock is necessary to
approve any consolidation or merger of Viacom with or into another
corporation pursuant to which shares of Viacom Class A common
stock would be converted into or exchanged for any securities or
other consideration.
A holder of an outstanding share of Viacom Class B common stock is not
entitled to vote on any question presented to the shareholders of Viacom
including, but not limited, to whether to increase or decrease, but not below
the number of shares then outstanding, the number of authorized shares of Viacom
Class B common stock. However, under the Delaware General Corporation Law, a
holder of an outstanding share of Viacom Class B common stock is entitled to
vote on any proposed amendment to
32
Viacom's restated certificate of incorporation, if the amendment will increase
or decrease the par value of the shares of Viacom Class B common stock, or alter
or change the powers, preferences or special rights of the shares of Viacom
Class B common stock so as to affect them adversely. Subject to the foregoing,
any future change in the number of authorized shares of Viacom Class B common
stock or any consolidation or merger of Viacom with or into another corporation
pursuant to which shares of Viacom Class B common stock would be converted into
or exchanged for any securities or other consideration could be consummated with
the approval of the holders of a majority of the outstanding shares of Viacom
Class A common stock and without any action by the holders of shares of Viacom
Class B common stock.
Dividends. Subject to the rights and preferences of any outstanding
preferred stock, dividends on Viacom Class A common stock and Viacom Class B
common stock are payable ratably on shares of Class A common stock and Class B
common stock out of the funds of Viacom legally available therefore when, as and
if declared by the Viacom Board.
Rights in Liquidation. In the event Viacom is liquidated, dissolved or
wound up, whether voluntarily or involuntarily, the net assets of Viacom would
be divided ratably among the holders of the then outstanding shares of Viacom
Class A common stock and Viacom Class B common stock after payment or provision
for payment of the full preferential amounts to which the holders of any series
of preferred stock of Viacom then issued and outstanding would be entitled.
Split, Subdivision or Combination. If Viacom splits, subdivides or
combines the outstanding shares of Viacom Class A common stock or Viacom Class B
common stock, the outstanding shares of the other class of Viacom common stock
shall be proportionally split, subdivided or combined in the same manner and on
the same basis as the outstanding shares of the other class of Viacom common
stock have been split, subdivided or combined.
Preemptive Rights. Shares of Viacom Class A common stock and Viacom
Class B common stock do not entitle a holder to any preemptive rights enabling a
holder to subscribe for or receive shares of stock of any class or any other
securities convertible into shares of stock of any class of Viacom. The board of
directors of Viacom possesses the power to issue shares of authorized but
unissued Viacom Class A common stock and Viacom Class B common stock without
further shareholder action, subject to the requirements of applicable law and
stock exchanges, unless National Amusements, Inc. would no longer hold a
majority of the outstanding shares of voting stock of Viacom as a result of the
issuance. The number of authorized shares of Viacom Class A common stock and
Viacom Class B common stock could be increased with the approval of the holders
of a majority of the outstanding shares of Viacom Class A common stock and
without any action by the holders of shares of Viacom Class B common stock.
Trading Market. The outstanding shares of Viacom Class A common stock
and Viacom Class B common stock are listed for trading on the NYSE. The
registrar and transfer agent for Viacom common stock is The Bank of New York.
Alien Ownership. Viacom's restated certificate of incorporation
provides that Viacom may prohibit the ownership or voting of a percentage of its
equity securities in order to ensure compliance with the requirements of the
Communications Act of 1934, as amended.
33
DESCRIPTION OF WARRANTS
Viacom may issue warrants for the purchase of its 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior debt
securities or shares of preferred stock. The warrants may be co-issued by Viacom
International when the securities with respect to which the warrants are issued
will be guaranteed by Viacom International. Warrants may be issued independently
or together with any 2001 senior debt securities, senior subordinated debt
securities, 1995 senior debt securities or shares of preferred stock offered by
any prospectus supplement and may be attached to or separate from 2001 senior
debt securities, 2001 senior subordinated debt securities, 1995 senior debt
securities or shares of preferred stock. The warrants are to be issued under
warrant agreements to be entered into among Viacom, Viacom International as
co-issuer, if applicable, and The Bank of New York, as warrant agent, or such
other bank or trust company as is named in the prospectus supplement relating to
the particular issue of warrants. The warrant agent will act solely as an agent
of Viacom in connection with the warrants and will not assume any obligation or
relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants.
General
If warrants are offered, the prospectus supplement will describe the
terms of the warrants, including the following:
o the offering price;
o the currency, currencies or currency units for which warrants may
be purchased;
o the designation, aggregate principal amount, currency, currencies
or currency units and terms of 2001 senior debt securities, 2001
senior subordinated debt securities or 1995 senior debt securities
purchasable upon exercise of the debt warrants and the price at
which the 2001 senior debt securities, 2001 senior subordinated
debt securities or 1995 senior debt securities may be purchased
upon such exercise;
o the designation, number of shares and terms of the preferred stock
purchasable upon exercise of the preferred stock warrants and the
price at which the shares of preferred stock may be purchased upon
such exercise;
o if applicable, the designation and terms of 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior
debt securities or preferred stock with which the warrants are
issued and the number of warrants issued with each 2001 senior
debt securities, 2001 senior subordinated debt security, 1995
senior debt securities or share of preferred stock;
o if applicable, the date on and after which the warrants and the
related 2001 senior debt securities, 2001 senior subordinated debt
securities, 1995 senior debt securities or preferred stock will be
separately transferable;
o the date on which the right to exercise the warrants will commence
and the date on which the right will expire;
o whether the warrants will be issued in registered or bearer form;
34
o a discussion of any material federal income tax and other special
considerations, procedures and limitations relating to the
warrants; and
o any other terms of the warrants.
Warrants may be exchanged for new warrants of different denominations.
If in registered form, the warrants may be presented for registration of
transfer. The Warrants may be exercised at the corporate trust office of the
warrant agent or any other office indicated in the prospectus supplement. Before
the exercise of their warrants, holders of warrants will not have any of the
rights of holders of the various securities purchasable upon the exercise,
including the right to receive payments of principal of, any premium on, or any
interest on, 2001 senior debt securities, 2001 senior subordinated debt
securities or 1995 senior debt securities purchasable upon the exercise or to
enforce the covenants in the applicable indenture or to receive payments of
dividends, if any, on the preferred stock purchasable upon their exercise or to
exercise any applicable right to vote. If Viacom maintains the ability to reduce
the exercise price of any preferred stock warrant and the right is triggered, it
will comply with federal securities laws, including Rule 13e-4 under the
Exchange Act, to the extent applicable.
Exercise of Warrants
Each warrant will entitle the holder to purchase a principal amount of
2001 senior debt securities, 2001 senior subordinated debt securities, 1995
senior debt securities or a number of shares of preferred stock at the exercise
price as will in each case be set forth in, or calculable from, the prospectus
supplement relating to the warrant. Warrants may be exercised at the times that
are set forth in the prospectus supplement relating to the warrants. After the
close of business on the date on which the warrant expires, or any later date to
which Viacom may extend the expiration date, unexercised warrants will become
void.
Subject to any restrictions and additional requirements that may be set
forth in the prospectus supplement relating thereto, warrants may be exercised
by delivery to the warrant agent of the certificate evidencing the warrants
properly completed and duly executed and of payment as provided in the
prospectus supplement of the amount required to purchase the 2001 senior debt
securities, 2001 senior subordinated debt securities, 1995 senior debt
securities or shares of preferred stock purchasable upon the exercise. The
exercise price will be the price applicable on the date of payment in full, as
set forth in the prospectus supplement relating to the warrants. Upon receipt of
the payment and the certificate representing the warrants to be exercised,
properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the prospectus supplement, Viacom
will, as soon as practicable, issue and deliver the 2001 senior debt securities,
2001 senior subordinated debt securities, 1995 senior debt securities or shares
of preferred stock purchasable upon the exercise, and, if applicable, Viacom
International will issue guarantees relating to those securities. If fewer than
all of the warrants represented by a certificate are exercised, a new
certificate will be issued for the remaining amount of warrants.
Additional Provisions
The exercise price payable and the number of shares of preferred stock
purchasable upon the exercise of each stock warrant will be subject to
adjustment in specific events, including the issuance of a stock dividend to
holders of preferred stock, or a combination, subdivision or reclassification of
preferred stock. In lieu of adjusting the number of shares of preferred stock
purchasable upon exercise of each stock warrant, Viacom may elect to adjust the
number of preferred stock warrants. No adjustment in the number of shares
purchasable upon exercise of the preferred stock warrants will be required until
cumulative adjustments require an adjustment of at least 1% thereof. Viacom may,
at its option, reduce
35
the exercise price at any time. No fractional shares will be issued upon
exercise of preferred stock warrants, but Viacom will pay the cash value of any
fractional shares otherwise issuable. In case of any consolidation, merger, or
sale or conveyance of the property of Viacom as an entirety or substantially as
an entirety, the holder of each outstanding preferred stock warrant will have
the right upon the exercise to the kind and amount of shares of stock and other
securities and property, including cash, receivable by a holder of the number of
shares of preferred stock into which the stock warrants were exercisable
immediately prior thereto.
No Rights as Shareholders
Holders of preferred stock warrants will not be entitled, by virtue of
being the holders, to vote, to consent, to receive dividends, to receive notice
as shareholders with respect to any meeting of shareholders for the election of
the directors or any other matter, or to exercise any rights whatsoever as its
shareholders, with respect to either Viacom or Viacom International.
36
PLAN OF DISTRIBUTION
We may sell the securities in any of three ways (or in any
combination): (a) through underwriters or dealers; (b) directly to a limited
number of purchasers or to a single purchaser; or (c) through agents. The
prospectus supplement will set forth the terms of the offering of such
securities, including:
o the name or names of any underwriters, dealers or agents and the
amounts of securities underwritten or purchased by each of them;
o the offering price of the securities and the proceeds to us and
any discounts, commissions or concessions allowed or reallowed or
paid to dealers; and
o any securities exchanges on which the securities may be listed.
Any offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any securities, the securities
will be acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The securities may be either offered to the public through
underwriting syndicates represented by managing underwriters, or directly by
underwriters. Generally, the underwriters' obligations to purchase the
securities will be subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the securities if they purchase any of the
securities.
We may sell the securities through agents from time to time. The
prospectus supplement will name any agent involved in the offer or sale of the
securities and any commissions we pay to them. Generally, any agent will be
acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by
certain purchasers to purchase the securities from Viacom at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
The contracts will be subject only to those conditions set forth in the
prospectus supplement, and the prospectus supplement will set forth any
commissions we pay for soliciting these contracts.
Agents and underwriters may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents and underwriters
may be customers of, engage in transactions with, or perform services for us in
the ordinary course of business.
37
LEGAL MATTERS
Certain legal matters in connection with the securities will be passed
upon under United States law for us and for Viacom International by Shearman &
Sterling, New York, New York.
EXPERTS
Our financial statements incorporated in this prospectus by reference
from our Annual Report on Form 10-K for the year ended December 31, 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 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 has 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.
38
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by Viacom
in connection with the sale of the securities being registered hereby. All
amounts are estimates except the registration fee. The costs and expenses set
forth in the following table represent the sum of the costs and expenses of
Registration Statement No. 333-52728 together with the incremental costs
associated with this Registration Statement.
Amounts to
be Paid
Registration fee.........................................$ 1,250,000
Legal fees and expenses.................................. 700,000
Blue Sky fees............................................ 50,000
Printing................................................. 500,000
Trustee fees............................................. 150,000
Rating agency fees....................................... 1,000,000
Accounting fees and expenses............................. 125,000
Miscellaneous............................................ 125,000
TOTAL....................................................$ 3,900,000
============
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any of its directors or officers who is or was 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.
II-1
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 Viacom's restated
certificate of incorporation.
Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made of securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in 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;
provided, however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports
II-2
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrants hereby understand that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing
provisions, or otherwise, the registrants have been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 this 31st day of May,
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 and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board of Directors, May 31, 2001
Chief Executive Officer and
/s/ SUMNER M. REDSTONE Director (Principal Executive
- -------------------------------- Officer)
Sumner M. Redstone
/s/ RICHARD J. BRESSLER Senior Executive Vice President and May 31, 2001
- -------------------------------- Chief Financial Officer (Principal
Richard J. Bressler Financial Officer)
/s/ SUSAN C. GORDON Vice President, Controller and May 31, 2001
- -------------------------------- Chief Accounting Officer (Principal
Susan C. Gordon 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
II-4
Signature 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 May 31, 2001
----------------------------
Michael D. Fricklas,
Attorney-in-Fact for the Directors
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 this 31st day of May,
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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ MEL KARMAZIN President, May 31, 2001
- ------------------------------------ Chief Executive Officer and Chief
Mel Karmazin Operating Officer
/s/ RICHARD J. BRESSLER Senior Executive Vice President May 31, 2001
- ------------------------------------- Chief Financial Officer and Director
Richard J. Bressler
/s/ MICHAEL D. FRICKLAS Executive Vice President, General May 31, 2001
- ------------------------------------- Counsel and Secretary and Director
Michael D. Fricklas
/s/ SUSAN C. GORDON Vice President, Controller and Chief May 31, 2001
- ------------------------------------ Accounting Officer
Susan C. Gordon
II-6
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
4.1 Form of Senior Indenture between Viacom Inc., Viacom
International Inc., and The Bank of New York, as senior
trustee.
4.2 Form of Senior Subordinated Indenture between Viacom Inc.,
Viacom International Inc., and The Bank of New York, as
trustee.
4.3 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 (incorporated herein by reference to
Exhibit 4.3 of Viacom's Current Report on Form 8-K dated
December 15, 1995).
4.4 First Supplemental Indenture, dated as of May 24, 1995
(incorporated herein by reference to Exhibit 4.4 of Viacom's
Current Report on Form 8-K dated December 15, 1995).
4.5 Second Supplemental Indenture and Amendment No. 1, dated as
of December 15, 1995 (incorporated herein by reference to
Exhibit 4.5 of Viacom's Current Report on Form 8-K dated
December 15, 1995).
4.6 Third Supplemental Indenture, dated as of July 22, 1996
(incorporated herein by reference to Exhibit 99.2 of Viacom's
Current Report on Form 8-K dated August 1, 1996).
4.7 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).
4.8 Fifth Supplemental Indenture, dated January 17, 2001
(incorporated herein by reference to Exhibit 4.6 of Viacom's
registration statement on Form S-4 dated January 30, 2001).
4.9 Sixth Supplemental Indenture, dated as of May 17, 2001.
4.10 Seventh Supplemental Indenture, dated as of May 31, 2001.
4.11 Form of Debt Warrant Agreement.
4.12 Form of Standard Stock Warrant Agreement.
4.13 Form of Preferred Stock Guarantee Agreement.
5.1 Opinion of Shearman & Sterling regarding the 2001 senior debt
securities, the 2001 senior subordinated debt securities, the
1995 senior debt securities, the preferred stock, the
guarantees and the warrants.
12.1 Statement regarding computation of Consolidated Ratio of
Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
II-1
23.2 Consent of KPMG LLP.
23.4 Consent of Shearman & Sterling (included in Exhibit 5.1).
24.1 Powers of Attorney.
24.2 Power of Attorney.
25.1 Statement of Eligibility on Form T-1 of The Bank of New York,
as senior trustee.
25.2 Statement of Eligibility on Form T-1 of The Bank of New York,
as senior subordinated trustee.
25.3 Statement of Eligibility on Form T-1 of Citibank, N.A., as
1995 senior debt trustee.
II-2
EXHIBIT 4.1
FORM OF 2001 SENIOR INDENTURE
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE BANK OF NEW YORK,
Trustee
-------------------------------
Indenture
Dated as of
-------------------------------
Providing for the Issuance
of
Senior Debt Securities
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of .
Trust Indenture Indenture
Act Section Section
ss. 310 (a)(1)................................... 607(a)
(a)(2)................................... 607(a)
(b) 607(b), 609
ss. 312 (c) ..................................... 701
ss. 314 (a) ..................................... 704
(a)(4)................................... 1008(a)
(c)(1)................................... 102
(c)(2)................................... 102
(e) ..................................... 102
ss. 315 (b) 601
ss. 316 (a) (last sentence)...................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b) 508
ss. 317 (a)(1)................................... 503
(a)(2)................................... 504
ss.318 (a) ..................................... 111
(c) ..................................... 111
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.......................................................1
SECTION 102. Compliance Certificates and Opinions.............................12
SECTION 103. Form of Documents Delivered to Trustee...........................13
SECTION 104. Acts of Holders..................................................14
SECTION 105. Notices, etc., to Trustee, Company or Guarantor..................15
SECTION 106. Notice to Holders; Waiver........................................16
SECTION 107. Effect of Headings and Table of Contents.........................17
SECTION 108. Successors and Assigns...........................................17
SECTION 109. Separability Clause..............................................17
SECTION 110. Benefits of Indenture............................................17
SECTION 111. Governing Law....................................................17
SECTION 112. Legal Holidays...................................................17
SECTION 113. Submission to Jurisdiction.......................................17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities..............................................18
SECTION 202. Form of Trustee's Certificate of Authentication..................18
SECTION 203. Securities Issuable in Global Form...............................19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.............................20
SECTION 302. Denominations....................................................24
SECTION 303. Execution, Authentication, Delivery and Dating...................24
SECTION 304. Temporary Securities.............................................26
SECTION 305. Registration, Registration of Transfer and Exchange..............29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons......................................................32
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset..........................................33
SECTION 308. Optional Extension of Maturity...................................36
SECTION 309. Persons Deemed Owners............................................37
SECTION 310. Cancellation.....................................................38
SECTION 311. Computation of Interest..........................................38
SECTION 312. Currency and Manner of Payments in Respect of
Securities.......................................................38
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent.......................................................42
SECTION 314. CUSIP Numbers....................................................42
i
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..........................43
SECTION 402. Application of Trust Funds.......................................44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................................44
SECTION 502. Acceleration of Maturity; Rescission and Annulment...............46
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................................47
SECTION 504. Trustee May File Proofs of Claim.................................47
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons............................................48
SECTION 506. Application of Money Collected...................................48
SECTION 507. Limitation on Suits..............................................49
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................................49
SECTION 509. Restoration of Rights and Remedies...............................50
SECTION 510. Rights and Remedies Cumulative...................................50
SECTION 511. Delay or Omission Not Waiver.....................................50
SECTION 512. Control by Holders of Securities.................................50
SECTION 513. Waiver of Past Defaults..........................................51
SECTION 514. Waiver of Stay or Extension Laws.................................51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults...............................................51
SECTION 602. Certain Rights of Trustee........................................51
SECTION 603. Not Responsible for Recitals or Issuance of Securities...........53
SECTION 604. May Hold Securities..............................................53
SECTION 605. Money Held in Trust..............................................53
SECTION 606. Compensation and Reimbursement and Indemnification of
Trustee..........................................................53
SECTION 607. Corporate Trustee Required; Eligibility..........................54
SECTION 608. Disqualification; Conflicting Interests..........................54
SECTION 609. Resignation and Removal; Appointment of Successor................54
SECTION 610. Acceptance of Appointment by Successor...........................56
SECTION 611. Merger, Conversion, Consolidation or Succession to Business......57
SECTION 612. Appointment of Authenticating Agent..............................57
ii
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY
TRUSTEE, COMPANY and guarantor
SECTION 701. Disclosure of Names and Addresses of Holders.....................59
SECTION 702. Preservation of Information; Communications to Holders...........59
SECTION 703. Reports by Trustee...............................................60
SECTION 704. Reports by Company and Guarantor.................................60
SECTION 705. Calculation of Original Issue Discount...........................60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company and Guarantor May Consolidate, etc. Only on
Certain Terms....................................................60
SECTION 802. Successor Person Substituted.....................................61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...............61
SECTION 902. Supplemental Indentures with Consent of Holders..................63
SECTION 903. Execution of Supplemental Indentures.............................64
SECTION 904. Effect of Supplemental Indentures................................65
SECTION 905. Conformity with Trust Indenture Act..............................65
SECTION 906. Reference in Securities to Supplemental Indentures...............65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.............65
SECTION 1002. Maintenance of Office or Agency.................................65
SECTION 1003. Money for Security Payments to Be Held in Trust.................67
SECTION 1004. Corporate Existence.............................................68
SECTION 1005. Maintenance of Principal Properties.............................68
SECTION 1006. Payment of Taxes and Other Claims...............................69
SECTION 1007. Additional Amounts..............................................69
SECTION 1008. Compliance Certificate..........................................70
SECTION 1009. Waiver of Certain Covenants.....................................70
SECTION 1010. Limitations on Liens............................................70
SECTION 1011. Limitations on Sale and Leaseback Transactions..................71
iii
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................................71
SECTION 1102. Election to Redeem; Notice to Trustee...........................71
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...............72
SECTION 1104. Notice of Redemption............................................72
SECTION 1105. Deposit of Redemption Price.....................................74
SECTION 1106. Securities Payable on Redemption Date...........................74
SECTION 1107. Securities Redeemed in Part.....................................75
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................................75
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...........75
SECTION 1203. Redemption of Securities for Sinking Fund.......................76
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees......................................................76
SECTION 1302. Execution and Delivery of Guarantees............................78
SECTION 1303. Limitation of Guarantor's Liability.............................78
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article........................................78
SECTION 1402. Repayment of Securities.........................................78
SECTION 1403. Exercise of Option..............................................79
SECTION 1404. When Securities Presented for Repayment Become Due
and Payable.....................................................79
SECTION 1405. Securities Repaid in Part.......................................80
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
Defeasance......................................................80
SECTION 1502. Defeasance and Discharge........................................81
SECTION 1503. Covenant Defeasance.............................................81
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.................82
SECTION 1505. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions........................83
iv
SECTION 1506. Reinstatement...................................................84
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.......................84
SECTION 1602. Call, Notice and Place of Meetings..............................85
SECTION 1603. Persons Entitled to Vote at Meetings............................85
SECTION 1604. Quorum; Action..................................................85
SECTION 1605. Determination of Voting Rights; Conduct and
Adjournment of Meetings.........................................86
SECTION 1606. Counting Votes and Recording Action of Meetings.................87
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
v
INDENTURE, dated as of , between VIACOM INC., a Delaware
corporation (the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036, VIACOM INTERNATIONAL INC., a Delaware corporation (the
"Guarantor"), having its principal office at 1515 Broadway, New York, New York
10036, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee"), having its Corporate Trust Office at 101 Barclay Street, New York,
New York 10286.
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company deems it necessary to issue from time to time
senior debt securities (the "Securities") evidencing its unsecured and
unsubordinated indebtedness, which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company) and which
may or may not be guaranteed by the Guarantor, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, to be issued in one or more series, unlimited as to
principal amount, to bear such rates of interest, to mature at such times and to
have such other provisions as provided in this Indenture.
The Guarantor desires with respect to Securities of certain
series issued under this Indenture to make the Guarantees provided for herein.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"), that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular and, pursuant to Section 301, any such item may, with respect
to any particular series of Securities, be amended, or modified or
specified as being inapplicable;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the TIA;
(3) except as otherwise herein expressly provided, all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1007.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Security Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Attributable Debt" means, with regard to a Sale and Leaseback
Transaction with respect to any Principal Property, the lesser of: (a) the fair
market value of such property (as determined in good faith by the Board of
Directors of the Company); or (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and excluding any
unexercised renewal or other extension options exercisable by the lessee, and
excluding amounts on account of maintenance and repairs, services, taxes and
similar charges and contingent rents), discounted at the rate of interest set
forth or implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum borne by the
Securities of the applicable series then Outstanding) compounded semi-annually.
In the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty,
2
but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated) or the net
amount determined assuming no such termination.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made on the same or on different days of the
week, in the same or in different newspapers, in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means the board of directors of the
Company or the Guarantor, as the case may be, or any committee of that board
duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company 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 particular location are authorized or obligated by law or executive order
to close.
"Capitalized Lease" means any obligation of a Person to pay
rent or other amounts incurred with respect to real property or equipment
acquired or leased by such Person and used in its business that is required to
be recorded as a capital lease in accordance with generally accepted accounting
principles consistently applied as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
3
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by one Officer of the Company and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, as applicable, either the U.S. Depositary
or the Common Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
4
"Euro Security" means any Bearer Security, any Security
initially represented by a Security in temporary global form exchangeable for
Bearer Securities and any Security in permanent global form exchangeable for
Bearer Securities.
"Euroclear" means Euroclear Bank S.A./N.V., a bank
incorporated under the laws of the Kingdom of Belgium as the operator of the
Euroclear System, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any Currency, including, without
limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association
of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not
5
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"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 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.
"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" 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 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
6
and shall include the terms of the or those particular series of Securities for
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or
7
herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment, notice
of exchange or conversion, or otherwise.
"non-United States Person" means a Person who is not a United
States Person.
"Notice of Default" shall have the meaning provided in Section
501.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company 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 counsel for the Company or the Guarantor, as the case may be, or who may
be an employee of or other counsel for the Company or the Guarantor.
"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 its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1502 and 1503, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fifteen;
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
8
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 301 hereof, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security and (iii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person who has an account with a
Depositary.
"Paying Agent" means any Person (including the Company or the
Guarantor acting as Paying Agent) authorized by the Company to pay the principal
of (or premium, if any) or interest, if any, on any Securities or coupons on
behalf of the Company.
"Periodic Offering" means an offering of a Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the
9
United States) where the principal of (and premium, if any) and interest, if
any, on such Securities are payable as specified and as contemplated by Sections
301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company or
any Restricted Subsidiary and located in the United States, the aggregate book
value of which on the date of determination exceeds $1.0 billion, other than any
such real property and related fixtures or improvements, which, as determined in
good faith by the Board of Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"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", when used with respect to any Security to be
repaid at the option of the Holder, means the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
10
"Restricted Subsidiary" means a corporation all of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of its Subsidiaries, or by the Company and one or more
of its Subsidiaries, which is incorporated under the laws of a State of the
United States, and which owns a Principal Property.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Person; provided, however, that "Sale and Leaseback Transaction"
shall not include such arrangements that were existing on the date set forth in
a prospectus supplement, or at the time any Person owning a Principal Property
becomes a Restricted Subsidiary (whether by acquisition or otherwise, including
through merger or consolidation).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority
of the outstanding Voting Stock of which is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation), including, without limitation, a partnership or joint venture,
in which such Person, one or more Subsidiaries thereof, or such Person and one
or more Subsidiaries thereof, directly or indirectly, at the date of the
determination thereof, has at least majority ownership interest entitled to vote
in the election of directors, managers or trustees thereof (or other Persons
performing similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions
11
of this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, any individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more 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.
"U.S. Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act, and if any time there is more than one such Person,
"U.S. Depositary" as used with respect to the Securities of any series shall
mean the U.S. Depositary with respect to the Securities of such series.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company, 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
12
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 stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the
information as to such factual matters is in the possession of the 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 as to such matters are erroneous.
13
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company 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
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 or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner that the Trustee deems reasonably
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee, the Company and the Guarantor may assume that such
ownership of any Bearer Security continues until
14
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner that the Trustee deems reasonably sufficient.
(e) If the Company 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, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company 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 and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent, 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, 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
15
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; Waiver. Except as otherwise
expressly provided herein or otherwise specified with respect to any Securities
pursuant to Section 301, where this Indenture provides for notice of any event
to Holders of Registered Securities by the Company, the Guarantor or the
Trustee, such notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such notification
to Holders of Registered Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
16
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in
this Indenture or in any Security, any Guarantee or coupon shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities, the Guarantees or coupons, express or implied, shall give
to any Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law. This Indenture, 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, without regard to
principles of conflicts of laws. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Submission to Jurisdiction. The Company and, if
any Guarantees are issued and, 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
17
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.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series, the Bearer Securities, if any, of each series and
related coupons, the temporary global Securities of each series, if any, and the
permanent global Securities of each series, if any, and the Guarantees, if any,
to be endorsed thereon shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved from time
to time by or pursuant to a Board Resolution of the Company or, in the case of
the Guarantees, the Guarantor, in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company or
the Guarantor, as the case may be, may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, including the
Guarantees, if any, shall be printed, lithographed or engraved or produced by
any combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, Guarantees or coupons, as evidenced by their
execution of such Securities, Guarantees or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
------------------------------------
Authorized Officer
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SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee or the Security Registrar in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee or the
Security Registrar shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee or
the Security Registrar the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 201 and Section 307,
unless otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the 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, Euroclear or Clearstream.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer's Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series including CUSIP
numbers (which shall distinguish the Securities of such series from all
other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1405) and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which any such interest
shall accrue or the method by which any such date or dates shall be
determined, the Interest Payment Dates on which any such interest will
be payable and the Regular Record Date, if any, for any interest
payable on any Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and the basis
upon which such interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the series
shall be payable (which in the case of Euro Securities shall be outside
the United States), any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may
be surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and, if different than the location
20
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, the Currency or Currencies in which, and other terms and
conditions upon which Securities, of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, the Currency or Currencies in which, and other
terms and conditions upon which, Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502, upon redemption of the Securities of the
series which are redeemable before their Stated Maturity, upon
surrender for repayment at the option of the Holder, or which the
Trustee shall be entitled to claim pursuant to Section 504 or the
method by which such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any,
on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in one or more
Currencies, other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election
may be made,
21
and the time and manner of determining the exchange rate between the
Currency or Currencies in which such Securities are denominated or
stated to be payable and the Currency or Currencies in which such
Securities are to be paid, in each case in accordance with, in addition
to or in lieu of any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1009)
of the Company 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;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form with or without coupons and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the
series (if permitted by applicable laws and regulations), whether
Bearer Securities of the series may be exchanged for Registered
Securities of the series, and the circumstances under which and the
place or places where such exchanges may be made and if Securities of
the series are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
and the extent to which, or the manner in which, any interest payable
on a permanent global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 307;
22
(19) the applicability, if any, of Sections 1502 and/or 1503
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fifteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1007 on the Securities of the series to any Holder who is a
non-United States Person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(25) if 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
(26) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements
of the Trust Indenture Act) at which the Securities will be issued and
any modification of the definitions set forth herein.
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
(subject to Section 303) and set forth in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer's Certificate setting forth the terms of the
Securities of such series.
23
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture referred to above may provide general
terms or parameter for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated by
the third paragraph of Section 303.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, or its President or one of
its Executive Vice Presidents or Vice Presidents or by its Treasurer or one of
its Assistant Treasurers, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the 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 the Company Order shall authenticate and deliver such
Securities; provided, however, that, in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series; provided further, however, that, in connection with
its original issuance, no Euro Security shall be mailed or otherwise delivered
to any location in the United States; and provided further that, unless
otherwise specified with respect to any series of Securities pursuant to Section
301, a Euro
24
Security (other than a Security in temporary global form) may be delivered in
connection with its original issuance only if the Person entitled to physical
delivery of such Euro Security (which, in case of a Euro Security to be received
in exchange for all or a portion of a Security in temporary global form, shall
be the account holder with Euroclear or Clearstream to whose account all or such
portion of such Security in temporary global form has been credited) shall have
furnished a certificate in the form set forth in Exhibit A-1 to this Indenture
(or in such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date. If any Security shall be
represented by a permanent global Security, then, for purposes of this Section
and Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be physical delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the Securities of any
series are to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Securities
and determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d)) shall be fully protected in relying upon an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any 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 completed
by appropriate insertions and executed and delivered by the Company to
the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities, such Guarantees and any
coupons.
Notwithstanding the provisions of Section 301 and the two
preceding paragraphs, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to
25
deliver an Officer's Certificate otherwise required pursuant to Section 301 or
the Company Order, Opinion of Counsel or Officer's Certificate otherwise
required pursuant to such preceding paragraphs at the time of issuance of each
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate and deliver such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities 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 Section 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security, no Guarantee endorsed thereon or coupon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. The
delivery of any Security by the Trustee after the authentication thereof
hereunder shall 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. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and, if applicable,
having endorsed thereon Guarantees duly executed by the Guarantor substantially
of the tenor of the
26
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 Securities of any series issuable as Bearer
Securities, such temporary Securities shall be delivered only in compliance with
the conditions set forth in Section 303 and may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series 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 with
the conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security 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 surrendered
by the Common Depositary to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged and, if applicable, having endorsed
thereon Guarantees duly executed by the
27
Guarantor. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Clearstream as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor and, if applicable, having endorsed thereon Guarantees duly
executed by the Guarantor, following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange
on his behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or Clearstream. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee or the applicable Paying Agent of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other forms as may be established pursuant to Section 301), for credit without
further interest on or after such Interest Payment Date to the respective
accounts of Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to Euroclear
or Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth as Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301). Notwithstanding anything to the
contrary herein contained, the
28
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor 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 Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal (or premium, if any) or
interest, if any, owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and Clearstream and not paid as
herein provided shall be returned to the Trustee or the applicable Paying Agent
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided,
and for facilitating exchanges of temporary global Securities for permanent
global Securities or definitive Securities, or both, or of permanent global
Securities for definitive Securities, or both, as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions, and 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 denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive, having,
if applicable, endorsed thereon Guarantees duly executed by the Guarantor.
Unless otherwise specified with respect to any
29
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons (except as provided below) and with all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them, 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 only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee or the Security
30
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 exchange for each
portion of such permanent global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor 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
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such permanent global Security shall be returned by the Trustee or the Security
Registrar to the Common Depositary or the U.S. Depositary, as the case may be,
or such other depositary referred to above in accordance with the Company's
instructions. If a Registered Security is issued in exchange for any portion of
a permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or any transfer agent)
31
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.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions having, if applicable, endorsed thereon
Guarantees duly executed by the Guarantor, and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company, the Guarantor (if
related Guarantees are issued) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company, 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
principal amount, containing identical terms and provisions, having, if
applicable, endorsed
32
thereon Guarantees duly executed by the Guarantor and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon, as the case may be; provided, however,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any Guarantees endorsed
thereon duly executed by the Guarantor and with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company and, if applicable, the Guarantor, whether or not the destroyed,
lost or stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series, 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) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, on any Registered Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the
33
Security Register or (ii) transfer to an account maintained by the payee
located in the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of any U.S. Depositary, and/or to
each of Euroclear and Clearstream with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for the purpose
of permitting such U.S. Depositary and/or each of Euroclear and Clearstream to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at
the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the
34
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or
35
dates on which or the period or periods during which and the price or prices at
which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Optional Extension of Maturity. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall
36
be extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Security will have the same terms as prior
to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate, if any, provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the
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) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and none of the Company, the Guarantor (if a Guarantee is
endorsed on such Registered Security), the Trustee nor 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 none of the Company, the Guarantor
(if a Guarantee is endorsed on such Bearer Security), the Trustee nor 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
37
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
temporary or permanent Security, nothing herein shall prevent the Company, the
Guarantor, the Trustee, or any agent of the Company, the Guarantor or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Common Depositary or a U.S. Depositary, as the case
may be, or impair, as between a Common Depositary or a U.S. Depositary and
Holders of beneficial interests in such temporary or permanent global Security,
the operation of customary practices governing the exercise of the rights of the
Common Depositary or the U.S. Depositary as Holder of such temporary or
permanent global Security.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company 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. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
38
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
39
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee of each
such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified
40
Amounts of such Component Currencies shall be replaced by an amount in
such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such
single currency, and such amount shall thereafter be a Specified Amount
and such single currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component Currency
shall be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the
date of such replacement equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market
Exchange Rate immediately before such division, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion
Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
An "Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series
of Registered Securities as specified pursuant to clause 13 of Section
301 by which the written election referred to in Section 312(b) may be
made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
41
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency.
SECTION 314. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use),
and, if so, the Trustee shall indicate the respective "CUSIP", "CINS" or "ISIN"
numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company shall
advise the Trustee as promptly as practicable in writing of any change in the
CUSIP, CINS or ISIN numbers.
42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section
1007), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company 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
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose, solely for
the benefit of the Holders, an amount in the Currency in which
the Securities of such series are payable, sufficient to pay
and discharge the entire
43
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has irrevocably paid or caused to be
irrevocably paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 612 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
any termination of this Indenture.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless it is either inapplicable to
a particular series or is specifically deleted or modified in or pursuant to the
supplemental indenture or a Board Resolution establishing such series of
Securities or is in the form of Security for such series:
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
44
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable, at its
Maturity, upon acceleration, redemption or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series) and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company 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 90 consecutive days; or
(5) 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 Company or, if
Guarantees are issued, the Guarantor in furtherance of any such action;
or
45
(6) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section 501(4)
or (5)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may, and the Trustee at the request of such Holders shall,
declare immediately due and payable, by a notice in writing to the Company and,
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, such portion of the principal amount as may be specified in the
terms of that series) of (and premium, if any) and accrued interest in respect
of each Security then Outstanding in that series (the "Default Amount"). Upon
any such declaration, the Default Amount shall become immediately due and
payable on all Outstanding Securities of that series. Notwithstanding any other
provision of this Section 502, if an Event of Default specified in Section
501(4) or (5) occurs then, the Default Amount on the Securities then Outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor, if applicable, and the Trustee may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
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No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee (such
demand and payment in the case of Euro Securities to occur only outside of the
United States), for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons of
that series for principal (and premium, if any) and interest, if any, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest, if any, at the rate or rates borne by or provided for
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company, the Guarantor (if any related Guarantees
are issued) or any other obligor upon Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company, the Guarantor (if any related Guarantees are
issued) or any other obligor upon Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, the Guarantor (if any related Guarantees are
issued) or any other obligor upon the Securities of a series or the property of
the Company, the Guarantor (if any related Guarantees are issued) or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and
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irrespective of whether the Trustee shall have made any demand on the Company
or, if applicable, the Guarantor for the payment of any overdue principal,
premium, if any, or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (or in the case of Original Issue Discount Securities, such
portion of the principal as may be provided in the terms thereof) (and
premium, if any) and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
(which distribution, in the case of Euro Securities, shall occur only
outside the United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, their agents and counsel, and any other amounts due the Trustee under
Section 606.
Subject to Article Eight and Section 902 and unless otherwise
provided as contemplated by Section 301, nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or coupons or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be (such presentation, in the case of Euro Securities or coupons,
to occur only outside the United States), and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment (such payment, in the case of Euro
Securities, to occur only outside the United States) of the amounts
then due and unpaid upon the Securities and coupons for principal (and
premium, if any) and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons designated in writing by the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an
indemnity, reasonably satisfactory to the Trustee, against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such Security
or payment of such coupon on the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date or,
49
in the case of repayment at the option of the Holders on the Repayment Date) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Guarantor, the Trustee and the Holders of Securities and coupons shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee may refuse to follow any direction which, in
the Opinion of Counsel to the Trustee, is unduly prejudicial to other
Holders of Securities of such series not consenting or would subject
the Trustee to personal liability.
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SECTION 513. Waiver of Past Defaults. Subject to Section 502,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to Securities of such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related
coupons, or
(2) in respect of a provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series, or in the payment
of any sinking fund installment with respect to the Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(3) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
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(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(2) Any request or direction of the Company 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 (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein), and any resolution of the Board of Directors of the
Company or the Guarantor may be sufficiently evidenced by a Board
Resolution.
(3) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon a Board Resolution,
an Opinion of Counsel or an Officer's Certificate.
(4) The Trustee may consult with counsel of its own selection
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee in good faith
shall determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during
normal business hours to examine the books, records and premises of the
Company or, if any Guarantees are issued, the Guarantor, personally or
by agent or attorney.
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(8) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(9) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limiation, its
right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacties hereunder.
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The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, including any
Guarantees endorsed thereon, except the Trustee's certificate of authentication,
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 Paying
Agent, Security Registrar, Authenticating Agent 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, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company or
the Guarantor, as the case may be.
SECTION 606. Compensation and Reimbursement and
Indemnification of Trustee. The Company agrees:
(1) To pay to the Trustee or any predecessor Trustee from time
to time such reasonable compensation for all services rendered by it
hereunder as has been agreed upon from time to time in writing (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or such predecessor Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith.
53
(3) To indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 609. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) Subject to Section 609(a) hereof, the Trustee may resign
at any time with respect to the Securities of one or more series by giving
written notice thereof to the Company and, if applicable, the Guarantor.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by an Officer's Certificate
delivered to the Trustee, provided that contemporaneously therewith (x) the
Company immediately appoints a successor Trustee with respect to the Securities
of such series meeting the requirements of Section 607 hereof and (y) the terms
of Section 610 hereof are complied with in respect of such appointment (the
Trustee being removed hereby agreeing to execute the instrument contemplated by
Section 610(b) hereof, if applicable, under such circumstances) and provided
further that no Default with respect to such Securities shall have occurred and
then be continuing at such time, or (ii) Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee, the Company and, if applicable, the Guarantor.
54
(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 has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company,
the Guarantor or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to an Officer's
Certificate may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution or Officer's Certificate, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
55
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company, 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 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, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the 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 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
56
specified in the provisos to the respective definition of those terms in Section
101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
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 611. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 612. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents (which may be an Affiliate or
Affiliates of the Company) with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as
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Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall promptly
give written notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve in the manner
set forth in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
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By:
------------------------------------
as Authenticating Agent
By:
------------------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be an
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities, provided that the terms
and conditions of such appointment are acceptable to the Trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY
TRUSTEE, 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 neither the Company, the
Guarantor nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Security Registrar nor any agent of any of them shall be held accountable by
reason of the disclosure of any information as to the names and addresses of the
Holders of Securities in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
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SECTION 703. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 which meets the requirements of TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission, with the Company
and the Guarantor. The Company will promptly notify the Trustee of the listing
of the Securities on any stock exchange.
SECTION 704. Reports by Company and Guarantor. The Company
and, so long as any Securities in respect of which Guarantees have been issued
are Outstanding, the Guarantor, will:
(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;
(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 or the Guarantor, as the case may
be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations.
The Trustee shall transmit by mail to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company or the
Guarantor, as the case may be, pursuant to paragraphs (a) and (b) of this
Section.
SECTION 705. Calculation of Original Issue Discount. Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company 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
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assets to another Person unless: (i) immediately after such consolidation,
merger, sale or conveyance no Event of Default or Default shall have occurred
and be continuing; (ii) the surviving Person in such consolidation or merger (if
other than the Company or the Guarantor, as the case may be) or person to whom
such property and assets are sold or conveyed (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, and such 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 applicable 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, (iii) 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 its property and
assets to any Subsidiary. For purposes of this Section, "sell or convey all or
substantially all of its property and assets" shall mean property and assets
contributing in the aggregate at least 80% of the Company's total consolidated
revenues as reported in the Company's last available periodic financial report
(quarterly or annual, as the case may be) filed with the Commission.
SECTION 802. Successor Person Substituted. Upon any
consolidation by the Company or the Guarantor with or merger by the Company or
the 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 term 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Unless otherwise specified in Section 902, without the consent of any
Holders of Securities or coupons, the Company and, if applicable, the Guarantor,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more
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indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company 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
(2) 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
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures
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relating to Securities convertible into or exchangeable for any
securities of any Person (including the Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1502 and 1503; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, and the
Trustee, the Company and, if applicable, the Guarantor, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
which affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of each such series
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or the terms of any sinking fund with respect to any
Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or repayment thereof at the option of the Holder, or change any
obligation of the Company to pay Additional Amounts as contemplated by
Section 1007 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or upon the redemption thereof or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the Currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption on or after the
Redemption Date or, in the case of repayment at the option
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of the Holder, on or after the Repayment Date), or modify the
provisions of this Indenture with respect to the mandatory redemption
of Securities or repayment of the Securities at the option of the
Holder in a manner adverse to any Holder of any Securities or any
coupons appertaining thereto, or adversely affect any right to convert
or exchange any Security as may be provided pursuant to Section 301
herein,
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture,
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso,
in accordance with the requirements of Sections 610(b) and 901(8), or
(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.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to
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receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee, 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 in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series), the principal of (and premium, if any, on) and
any interest on the Securities of that series in accordance with the terms of
such Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the respective coupons for such
interest installments.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
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Securities of that series and this Indenture may be served, which agency
initially shall be The Bank of New York, 101 Barclay Street, New York, New York
10286, Attention: . If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007); provided, however, that, if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and give prompt
notice to the Holders as provided in Section 106 of the location, and any change
in the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agent to receive all
such respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, if any, or interest
on Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to any account maintained with a financial institution located in the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of (and premium, if
any, on) and any interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, or the office or agency of the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, if any, interest or Additional Amounts, as
the case may be, at all offices or
66
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee and the Holders of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in the
Borough of Manhattan, The City of New York and as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company 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 or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or any interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due, such sum of money to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums of money for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
of money shall be paid to such Persons or otherwise disposed of as
herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal of (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums of
money held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company 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 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 Article Eight,
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 its 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.
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 a Restricted Subsidiary of the
Company to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to
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be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties or prevent or restrict the sale, abandonment or other
disposition of any of such properties if such action is, in the judgment of the
Company, desirable in the conduct of the business of the Company and its
Subsidiaries as a whole.
SECTION 1006. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary of the Company or upon the
income, profits or property of the Company or any Subsidiary of the Company, and
(b) all material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary of the Company; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith.
SECTION 1007. Additional Amounts. If Securities of a series
provide for the payment of additional amounts to any Holder who is a non-United
States Person in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto such Additional Amounts as may be
so provided by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of a
Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are non-United States Persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officer's Certificate shall specify by country the amount, if any, required to
be withheld on such
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payments to such Holders of Securities of that series or related coupons and the
Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officer's Certificate furnished pursuant to this
Section or in the event the Trustee shall not withhold or deduct any sums as a
result of the non-receipt of an Officer's Certificate pursuant to this Section.
SECTION 1008. Compliance Certificate. (a) The Company and, so
long as any Securities in respect of which 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, ending after the date hereof so long as any Security is Outstanding
hereunder, an Officer's Certificate, stating that in the course of the
performance by the signatory of his or her duties as such officer of the Company
or the Guarantor, as the case may be, they would normally obtain knowledge of
any Default by the Company in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture, and stating whether or not
they have obtained knowledge of any such Default existing on the date of such
statement and, if so, specifying each such Default of which the signatory has
knowledge and the nature thereof.
(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable upon
any officer listed in (a) above becoming aware of any Default, Event of Default
or default in the performance of any covenant, agreement or condition contained
in this Indenture, an Officer's Certificate specifying such Default, Event of
Default, default or event of default and what action the Company is taking or
proposes to take with respect thereto and the status thereof.
SECTION 1009. Waiver of Certain Covenants. With respect to the
Securities of any series, the Company 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.
SECTION 1010. Limitations on Liens. The Company shall not
create, assume or suffer to exist any Lien on any of its property or assets,
without securing the Securities of any applicable series equally and ratably
with (or prior to) such secured Indebtedness; provided, however, that the
foregoing shall apply only to Liens which in the aggregate exceed 15% of the
Company's total consolidated assets as of the end of the Company's most recent
accounting period preceding the creation or assumption of any such Lien (reduced
by any Attributable Debt with respect to any Sale and Leaseback Transaction
permitted under Section 1011 below). This restriction will not apply to
Capitalized Leases or to Indebtedness
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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 Transaction within 180 days of such sale to
either (or a combination) of (i) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by payment at
maturity) of debt for borrowed money of the Company or a Subsidiary of the
Company that matures more than 12 months after its creation (other than debt
that is subordinated to the Securities or debt to the Company or a Subsidiary of
the Company) or (ii) the purchase, construction or development of other
comparable property; or (e) such Sale and Leaseback Transaction is entered into
within 180 days after the initial acquisition by the Company or such Restricted
Subsidiary, as the case may be, of the Principal Property subject to such Sale
and Leaseback Transaction.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by an
Officer's Certificate. In case of any redemption at the election of the Company
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed,
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and shall deliver to the Trustee such documentation and records as shall enable
the Trustee to select the Securities to be redeemed pursuant to Section 1103. In
the case of any redemption of Securities of any series (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate;
provided that such method complies with the rules of any national securities
exchange or quotation system on which the Securities are then listed, and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Euro
Securities shall be outside the United States) where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Guarantor, if applicable, the Trustee for such series
and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
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SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003)) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company and, if
applicable, the Guarantor shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities shall cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and provided further
that, unless otherwise specified as contemplated by Section 301, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company, 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.
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If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company, 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 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. However, if less than all the Securities of any series
with differing issue dates, interest rates and stated maturities are to be
redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. Subject to Section 1203, the Company may, in satisfaction of all or
any part of any mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series to the Trustee
(other than any previously called for redemption or presented for repayment at
the option of the Holder) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such
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series which have been previously purchased or otherwise acquired or redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, as provided for by the terms of such Securities
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, in each case in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of the same
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities so delivered or
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officer's
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not more than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
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, if
any, 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 thereto), if any, on each such Security, and the due and punctual
payment of any
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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.
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.
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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, the Chief
Executive Officer, the Chief Operating Officer, the Financial Officer, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
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 Thirteen 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 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 Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 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
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in the terms of such Securities, be repaid at the Repayment Price thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company or the Guarantor is acting as Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the Repayment Price of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 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 Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire Repayment Price of such Security is to be repaid in
accordance with the terms of such Security, the portion of the Repayment Price
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of such Security
surrendered that is not to be repaid, must be specified. Any Security providing
for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 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 Repayment Price of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of
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such coupons; and provided further that, unless otherwise specified as
contemplated by Section 301, in the case of Registered Securities, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Company shall default
in the payment thereof) to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1402 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, 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 any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 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 of such
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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 Fourteen.
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 its
obligations with respect to the Outstanding Securities of such series and any
related coupons on and after the date the conditions precedent set forth below
are satisfied but subject to satisfaction of the conditions subsequent set forth
below (hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company 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
its obligations under any Section(s) of this Indenture applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision with respect to the Outstanding Securities of such series and any
related coupons on and after the date the conditions precedent set forth below
are satisfied but subject to satisfaction of the conditions subsequent set forth
below (hereinafter, "covenant defeasance"), and such Securities and any related
coupons shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such Sections, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities of such series and any related coupons, the Company 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
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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) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (or other qualifying trustee), to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) each installment of
principal of (and premium, if any, on) and interest on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any)
or interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture, the Securities of such
series and the coupons, if any, appertaining thereto, and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any related coupons on the due dates
thereof. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem
all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article
Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as paragraphs (4) and
(5) of Section 501 are concerned, at any time during the period ending
on the 91st day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the expiration of
such period).
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(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 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 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
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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 Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
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 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 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 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 and 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 entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 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
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reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as
limited by the first paragraph of the proviso to Section 902, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of not less than a specified percentage, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 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
(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
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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, each Holder of a Security
of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 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
fact, 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.
87
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
VIACOM INC.,
as Issuer
By:
----------------------------
Name:
Title:
Attest:
By:
---------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.,
as Guarantor
By:
----------------------------
Name:
Title:
Attest:
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Viacom Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
A-1-2
This certificate excepts and does not relate to [U.S.$]_______
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 20
--------------------------- ---
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Viacom Inc.
or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
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
A-2-2
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated: , 20
----------------------------- ---
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Euroclear Bank S.A./N.V.,
as Operator of the Euroclear System]
[Clearstream Banking, societe anonyme]
By:
---------------------------------
Name:
Title
EXHIBIT 4.2
FORM OF 2001 SENIOR SUBORDINATED INDENTURE
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE BANK OF NEW YORK,
Trustee
-----------------------------
Indenture
Dated as of
-----------------------------
Providing for the Issuance
of
Senior Subordinated Debt Securities
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of .
Trust Indenture Indenture
Act Section Section
ss. 310 (a)(1)................................... 607(a)
(a)(2)................................... 607(a)
(b)...................................... 607(b), 609
ss. 312 (c)...................................... 701
ss. 314 (a)...................................... 704
(a)(4)................................... 1008(a)
(c)(1)................................... 102
(c)(2)................................... 102
(e)...................................... 102
ss. 315 (b)...................................... 601
ss. 316 (a) (last sentence)...................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b)...................................... 508
ss. 317 (a)(1)................................... 503
(a)(2)................................... 504
ss.318 (a)...................................... 111
(c)...................................... 111
- ---------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..........................................................................................1
SECTION 102. Compliance Certificates and Opinions................................................................13
SECTION 103. Form of Documents Delivered to Trustee..............................................................14
SECTION 104. Acts of Holders.....................................................................................14
SECTION 105. Notices, etc., to Trustee, Company or Guarantor.....................................................16
SECTION 106. Notice to Holders; Waiver...........................................................................16
SECTION 107. Effect of Headings and Table of Contents............................................................17
SECTION 108. Successors and Assigns..............................................................................17
SECTION 109. Separability Clause.................................................................................17
SECTION 110. Benefits of Indenture...............................................................................17
SECTION 111. Governing Law.......................................................................................18
SECTION 112. Legal Holidays......................................................................................18
SECTION 113. Submission to Jurisdiction..........................................................................18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.................................................................................18
SECTION 202. Form of Trustee's Certificate of Authentication.....................................................19
SECTION 203. Securities Issuable in Global Form..................................................................19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................................................20
SECTION 302. Denominations.......................................................................................24
SECTION 303. Execution, Authentication, Delivery and Dating......................................................24
SECTION 304. Temporary Securities................................................................................27
SECTION 305. Registration, Registration of Transfer and Exchange.................................................29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons........................................33
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.............................34
SECTION 308. Optional Extension of Maturity......................................................................37
SECTION 309. Persons Deemed Owners...............................................................................38
SECTION 310. Cancellation........................................................................................38
SECTION 311. Computation of Interest.............................................................................39
SECTION 312. Currency and Manner of Payments in Respect of Securities............................................39
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent........................................42
SECTION 314. CUSIP Numbers.......................................................................................43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............................................................43
SECTION 402. Application of Trust Funds..........................................................................44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................................................................45
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................................................46
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.....................................47
SECTION 504. Trustee May File Proofs of Claim....................................................................48
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons..............................49
SECTION 506. Application of Money Collected......................................................................49
SECTION 507. Limitation on Suits.................................................................................49
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...........................50
SECTION 509. Restoration of Rights and Remedies..................................................................50
SECTION 510. Rights and Remedies Cumulative......................................................................50
SECTION 511. Delay or Omission Not Waiver........................................................................51
SECTION 512. Control by Holders of Securities....................................................................51
SECTION 513. Waiver of Past Defaults.............................................................................51
SECTION 514. Waiver of Stay or Extension Laws....................................................................51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults..................................................................................52
SECTION 602. Certain Rights of Trustee...........................................................................52
SECTION 603. Not Responsible for Recitals or Issuance of Securities..............................................53
SECTION 604. May Hold Securities.................................................................................53
SECTION 605. Money Held in Trust.................................................................................54
SECTION 606. Compensation and Reimbursement and Indemnification of Trustee.......................................54
SECTION 607. Corporate Trustee Required; Eligibility.............................................................54
SECTION 608. Disqualification; Conflicting Interests.............................................................55
SECTION 609. Resignation and Removal; Appointment of Successor...................................................55
SECTION 610. Acceptance of Appointment by Successor..............................................................56
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.........................................57
SECTION 612. Appointment of Authenticating Agent.................................................................58
2
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY
TRUSTEE, COMPANY AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders........................................................60
SECTION 702. Preservation of Information; Communications to Holders..............................................60
SECTION 703. Reports by Trustee..................................................................................60
SECTION 704. Reports by Company and Guarantor....................................................................60
SECTION 705. Calculation of Original Issue Discount..............................................................61
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company and Guarantor May Consolidate, etc. Only on Certain Terms...................................61
SECTION 802. Successor Person Substituted........................................................................62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..................................................62
SECTION 902. Supplemental Indentures with Consent of Holders.....................................................64
SECTION 903. Execution of Supplemental Indentures................................................................65
SECTION 904. Effect of Supplemental Indentures...................................................................65
SECTION 905. Conformity with Trust Indenture Act.................................................................65
SECTION 906. Reference in Securities to Supplemental Indentures..................................................66
SECTION 907. Effect on Senior Indebtedness.......................................................................66
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest................................................66
SECTION 1002. Maintenance of Office or Agency....................................................................66
SECTION 1003. Money for Security Payments to Be Held in Trust....................................................68
SECTION 1004. Corporate Existence................................................................................69
SECTION 1005. Maintenance of Principal Properties................................................................69
SECTION 1006. Payment of Taxes and Other Claims..................................................................69
SECTION 1007. Additional Amounts.................................................................................70
SECTION 1008. Compliance Certificate.............................................................................71
SECTION 1009. Waiver of Certain Covenants........................................................................71
SECTION 1010. Limitations on Liens...............................................................................71
SECTION 1011. Limitations on Sale and Leaseback Transactions.....................................................72
3
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................................................................72
SECTION 1102. Election to Redeem; Notice to Trustee..............................................................72
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..................................................73
SECTION 1104. Notice of Redemption...............................................................................73
SECTION 1105. Deposit of Redemption Price........................................................................74
SECTION 1106. Securities Payable on Redemption Date..............................................................75
SECTION 1107. Securities Redeemed in Part........................................................................75
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...........................................................................76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..............................................76
SECTION 1203. Redemption of Securities for Sinking Fund..........................................................77
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.........................................................................................77
SECTION 1302. Execution and Delivery of Guarantees...............................................................78
SECTION 1303. Subordination of Guarantees........................................................................79
SECTION 1304. Limitation of Guarantor's Liability................................................................79
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article...........................................................................79
SECTION 1402. Repayment of Securities............................................................................79
SECTION 1403. Exercise of Option.................................................................................80
SECTION 1404. When Securities Presented for Repayment Become Due and Payable.....................................80
SECTION 1405. Securities Repaid in Part..........................................................................81
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant Defeasance.......................................81
SECTION 1502. Defeasance and Discharge...........................................................................82
SECTION 1503. Covenant Defeasance................................................................................82
SECTION 1504. Conditions to Defeasance or Covenant Defeasance....................................................83
4
SECTION 1505. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.....84
SECTION 1506. Reinstatement......................................................................................85
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called..........................................................85
SECTION 1602. Call, Notice and Place of Meetings.................................................................85
SECTION 1603. Persons Entitled to Vote at Meetings...............................................................86
SECTION 1604. Quorum; Action.....................................................................................86
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings................................87
SECTION 1606. Counting Votes and Recording Action of Meetings....................................................88
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
SECTION 1701. Agreement to Subordinate...........................................................................88
SECTION 1702. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.............89
SECTION 1703. No Payment on Securities in Event of Default on Senior Indebtedness................................90
SECTION 1704. Payments on Securities Permitted...................................................................91
SECTION 1705. Authorization of Holders to Trustee to Effect Subordination........................................91
SECTION 1706. Notices to Trustee.................................................................................91
SECTION 1707. Trustee as Holder of Senior Indebtedness...........................................................92
SECTION 1708. Modifications of Terms of Senior Indebtedness......................................................92
SECTION 1709. Reliance on Judicial Order or Certificate of Liquidating Agent.....................................92
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
5
INDENTURE, dated as of , between VIACOM INC., a Delaware
corporation (the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036, VIACOM INTERNATIONAL INC., a Delaware corporation (the
"Guarantor"), having its principal office at 1515 Broadway, New York, New York
10036, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee"), having its Corporate Trust Office at 101 Barclay Street, New York,
New York 10286.
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company deems it necessary to issue from time to time
senior subordinated debt securities (the "Securities") evidencing its unsecured
and subordinated indebtedness, which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company) and which
may or may not be guaranteed by the Guarantor, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, to be issued in one or more series, unlimited as to
principal amount, to bear such rates of interest, to mature at such times and to
have such other provisions as provided in this Indenture.
The Guarantor desires with respect to Securities of certain
series issued under this Indenture to make the Guarantees provided for herein.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"), that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular and, pursuant to Section 301, any such item may, with respect
to any particular series of Securities, be amended, or modified or
specified as being inapplicable;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the TIA;
(3) except as otherwise herein expressly provided, all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section
1007.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Security Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Attributable Debt" means, with regard to a Sale and Leaseback
Transaction with respect to any Principal Property, the lesser of: (a) the fair
market value of such property (as determined in good faith by the Board of
Directors of the Company); or (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and excluding any
unexercised renewal or other extension options exercisable by the lessee, and
excluding amounts on account of maintenance and repairs, services, taxes and
similar charges and contingent rents), discounted at the rate of interest set
forth or implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum borne by the
Securities of the applicable series then Outstanding) compounded semi-annually.
In the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty,
2
but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated) or the net
amount determined assuming no such termination.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made on the same or on different days of the
week, in the same or in different newspapers, in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors" means the board of directors of the
Company or the Guarantor, as the case may be, or any committee of that board
duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company 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 particular location are authorized or obligated by law or executive order
to close.
"Capitalized Lease" means any obligation of a Person to pay
rent or other amounts incurred with respect to real property or equipment
acquired or leased by such Person and used in its business that is required to
be recorded as a capital lease in accordance with generally accepted accounting
principles consistently applied as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
3
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by one Officer of the Company and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date of this Indenture is located at 101
Barclay Street, Floor 21 West, New York, New York 10286.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, as applicable, either the U.S. Depositary
or the Common Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
4
"Euro Security" means any Bearer Security, any Security
initially represented by a Security in temporary global form exchangeable for
Bearer Securities and any Security in permanent global form exchangeable for
Bearer Securities.
"Euroclear" means Euroclear Bank S.A./N.V., a bank
incorporated under the laws of the Kingdom of Belgium as the operator of the
Euroclear System, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any Currency, including, without
limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association
of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not
5
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"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 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.
"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" 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 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
6
and shall include the terms of the or those particular series of Securities for
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or
7
herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment, notice
of exchange or conversion, or otherwise.
"non-United States Person" means a Person who is not a United
States Person.
"Notice of Default" shall have the meaning provided in Section
501.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company 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 counsel for the Company or the Guarantor, as the case may be, or who may
be an employee of or other counsel for the Company or the Guarantor.
"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 its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1502 and 1503, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fifteen;
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
8
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 301 hereof, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security and (iii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Participant" means a Person who has an account with a
Depositary.
"Paying Agent" means any Person (including the Company or the
Guarantor acting as Paying Agent) authorized by the Company to pay the principal
of (or premium, if any) or interest, if any, on any Securities or coupons on
behalf of the Company.
"Periodic Offering" means an offering of a Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the
9
United States) where the principal of (and premium, if any) and interest, if
any, on such Securities are payable as specified and as contemplated by Sections
301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company or
any Restricted Subsidiary and located in the United States, the aggregate book
value of which on the date of determination exceeds $1.0 billion, other than any
such real property and related fixtures or improvements, which, as determined in
good faith by the Board of Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"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", when used with respect to any Security to be
repaid at the option of the Holder, means the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
10
"Restricted Subsidiary" means a corporation all of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of its Subsidiaries, or by the Company and one or more
of its Subsidiaries, which is incorporated under the laws of a State of the
United States, and which owns a Principal Property.
"Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Person; provided, however, that "Sale and Leaseback Transaction"
shall not include such arrangements that were existing on the date set forth in
a prospectus supplement, or at the time any Person owning a Principal Property
becomes a Restricted Subsidiary (whether by acquisition or otherwise, including
through merger or consolidation).
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" of the Company or the Guarantor, as the
case may be, means, without duplication, (i) any obligation of the Company or
the Guarantor for money borrowed, (ii) any obligation of the Company or the
Guarantor evidenced by bonds, debentures, notes, or other similar instruments,
other than the Securities or any other indebtedness which is subordinate to the
Securities, (iii) any reimbursement obligation of the Company or the Guarantor
in respect of letters of credit or other similar instruments which support
financial obligations which would otherwise become Indebtedness, (iv) any
obligation of the Company or the Guarantor under Capitalized Leases (other than
in respect of (x) telecommunications equipment including, without limitation,
satellite transponders, and (y) theme park equipment and attractions), (v) any
guarantee of the Company or the Guarantor for indebtedness of other persons,
other than any subordinated Guarantee and (vi) any obligation of any third party
to the extent secured by a Lien on the assets of the Company or the Guarantor;
provided, however, that "Senior Indebtedness" of the Company or the Guarantor,
as the case may be, shall not include any obligation of the Company or the
Guarantor (i) to any Subsidiary of the Company or the Guarantor or to any Person
with respect to which the Company or the Guarantor is a Subsidiary or (ii)
specifically with respect to the production, distribution or acquisition of
motion pictures or other programming rights, talent or publishing rights.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
11
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority
of the outstanding Voting Stock of which is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation), including, without limitation, a partnership or joint venture,
in which such Person, one or more Subsidiaries thereof, or such Person and one
or more Subsidiaries thereof, directly or indirectly, at the date of the
determination thereof, has at least majority ownership interest entitled to vote
in the election of directors, managers or trustees thereof (or other Persons
performing similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, any individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury regulations),
any estate the income of which is subject to United States federal income
taxation regardless of its source, or any trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more 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.
"U.S. Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act, and if any time there is more than one such
12
Person, "U.S. Depositary" as used with respect to the Securities of any series
shall mean the U.S. Depositary with respect to the Securities of such series.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President", when used with respect to the Company, 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 stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
13
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the
information as to such factual matters is in the possession of the 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 as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company 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
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
14
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 or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner that the Trustee deems reasonably
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee, 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 ownership of
Bearer Securities may also be proved in any other manner that the Trustee deems
reasonably 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, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company 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
15
unless it shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent, 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, 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; Waiver. Except as otherwise
expressly provided herein or otherwise specified with respect to any Securities
pursuant to Section 301, where this Indenture provides for notice of any event
to Holders of Registered Securities by the Company, the Guarantor or the
Trustee, such notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice to Holders of Registered Securities by mail, then such notification
to Holders of Registered Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein.
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Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in
this Indenture or in any Security, any Guarantee or coupon shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities, the Guarantees or coupons, express or implied, shall give
to any Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
17
SECTION 111. 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, without regard to
principles of conflicts of laws. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Submission to Jurisdiction. The Company and, if
any Guarantees are issued and, 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.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series, the Bearer Securities, if any, of each series and
related coupons, the temporary global Securities of each series, if any, and the
permanent global Securities of each series, if any, and the Guarantees, if any,
to be endorsed thereon shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved from time
to time by or pursuant to a Board Resolution of the Company or, in the case of
the Guarantees, the Guarantor, in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company or
the Guarantor, as the case may be, may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
18
with any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, including the
Guarantees, if any, shall be printed, lithographed or engraved or produced by
any combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, Guarantees or coupons, as evidenced by their
execution of such Securities, Guarantees or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
----------------------------------
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee or the Security Registrar in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee or the
Security Registrar shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
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
19
Company and the Company delivers to the Trustee or the Security Registrar the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 201 and Section 307,
unless otherwise specified as contemplated by Section 301, payment of principal
of (and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the 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, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in Article
Seventeen.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officer's Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series including CUSIP
numbers (which shall distinguish the Securities of such series from all
other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1405) and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
20
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which any such interest
shall accrue or the method by which any such date or dates shall be
determined, the Interest Payment Dates on which any such interest will
be payable and the Regular Record Date, if any, for any interest
payable on any Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and the basis
upon which such interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest, if any, on Securities of the series
shall be payable (which in the case of Euro Securities shall be outside
the United States), any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may
be surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and, if different than the location specified
in Section 105, the place or places where notices or demands to or upon
the Company 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, the Currency or Currencies in which, and other terms and
conditions upon which Securities, of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, the Currency or Currencies in which, and other
terms and conditions upon which, Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502, upon redemption of the Securities of the
21
series which are redeemable before their Stated Maturity, upon
surrender for repayment at the option of the Holder, or which the
Trustee shall be entitled to claim pursuant to Section 504 or the
method by which such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any,
on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in one or more
Currencies, other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate
between the Currency or Currencies in which such Securities are
denominated or stated to be payable and the Currency or Currencies in
which such Securities are to be paid, in each case in accordance with,
in addition to or in lieu of any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1009)
of the Company 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;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form with or without coupons and whether any Securities of the
series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the
series
22
(if permitted by applicable laws and regulations), whether Bearer
Securities of the series may be exchanged for Registered Securities of
the series, and the circumstances under which and the place or places
where such exchanges may be made and if Securities of the series are to
be issuable as a global Security, the identity of the depository for
such series;
(17) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
and the extent to which, or the manner in which, any interest payable
on a permanent global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 307;
(19) the applicability, if any, of Sections 1502 and/or 1503
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fifteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1007 on the Securities of the series to any Holder who is a
non-United States Person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(24) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
23
(25) if 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
(26) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements
of the Trust Indenture Act) at which the Securities will be issued and
any modification of the definitions set forth herein.
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
(subject to Section 303) and set forth in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer's Certificate setting forth the terms of the
Securities of such series.
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture referred to above may provide general
terms or parameter for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in a
Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated by
the third paragraph of Section 303.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer, or its President or one of
its Executive Vice Presidents or Vice Presidents or by its Treasurer or one of
its Assistant Treasurers, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
24
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company 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 the Company Order shall authenticate and deliver such
Securities; provided, however, that, in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series; provided further, however, that, in connection with
its original issuance, no Euro Security shall be mailed or otherwise delivered
to any location in the United States; and provided further that, unless
otherwise specified with respect to any series of Securities pursuant to Section
301, a Euro Security (other than a Security in temporary global form) may be
delivered in connection with its original issuance only if the Person entitled
to physical delivery of such Euro Security (which, in case of a Euro Security to
be received in exchange for all or a portion of a Security in temporary global
form, shall be the account holder with Euroclear or Clearstream to whose account
all or such portion of such Security in temporary global form has been credited)
shall have furnished a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date. If any Security shall
be represented by a permanent global Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be physical delivery in connection
with its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If not all the
Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining the terms of particular Securities
of such series, such as interest rate, maturity date, date of issuance and date
from which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to TIA
Section 315(a) through 315(d)) shall be fully protected in relying upon an
Opinion of Counsel stating,
25
(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 completed
by appropriate insertions and executed and delivered by the Company to
the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities, such Guarantees and any
coupons.
Notwithstanding the provisions of Section 301 and the two
preceding paragraphs, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officer's Certificate
otherwise required pursuant to Section 301 or the Company Order, Opinion of
Counsel or Officer's Certificate otherwise required pursuant to such preceding
paragraphs at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate and deliver such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities 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 Section 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
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No Security, no Guarantee endorsed thereon or coupon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture. The
delivery of any Security by the Trustee after the authentication thereof
hereunder shall 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. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued 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 Securities of any series issuable as
Bearer Securities, such temporary Securities shall be delivered only in
compliance with the conditions set forth in Section 303 and may be in global
form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series 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 with
the conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all
27
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security 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 surrendered
by the Common Depositary to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged and, if applicable, having endorsed
thereon Guarantees duly executed by the Guarantor. The definitive Securities to
be delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor and, if applicable, having endorsed thereon Guarantees duly
executed by the Guarantor, following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange
on his behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee,
28
any Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or Clearstream. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee or the applicable Paying Agent of a certificate or
certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other forms as may be established pursuant to Section 301), for credit without
further interest on or after such Interest Payment Date to the respective
accounts of Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to Euroclear
or Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in the
form set forth as Exhibit A-1 to this Indenture (or in such other forms as may
be established pursuant to Section 301). Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to this paragraph
shall satisfy the certification requirements of the preceding two paragraphs of
this Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor 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
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustee or the applicable
Paying Agent immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
29
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided,
and for facilitating exchanges of temporary global Securities for permanent
global Securities or definitive Securities, or both, or of permanent global
Securities for definitive Securities, or both, as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions, and 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 denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive, 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, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons (except as provided below) and with all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them, 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
30
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 only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee or the Security Registrar definitive
Securities of that series in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Security,
executed by the Company 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 exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor 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 to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no
31
Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such permanent global
Security shall be returned by the Trustee or the Security Registrar to the
Common Depositary or the U.S. Depositary, as the case may be, or such other
depositary referred to above in accordance with the Company's instructions. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or any transfer agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar or any transfer agent, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1405 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for
32
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions having, if applicable, endorsed thereon
Guarantees duly executed by the Guarantor, and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company, the Guarantor (if
related Guarantees are issued) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company, 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
principal amount, containing identical terms and provisions, having, if
applicable, endorsed thereon Guarantees duly executed by the Guarantor and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon, as the case may be; provided, however,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any Guarantees endorsed
thereon duly executed by the Guarantor and with its coupons, if any, issued
pursuant to this Section in lieu of
33
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 its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series, 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) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, on any Registered Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) transfer to an account maintained by the payee
located in the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of any U.S. Depositary, and/or to
each of Euroclear and Clearstream with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for the purpose
of permitting such U.S. Depositary and/or each of Euroclear and Clearstream to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
34
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at
the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
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(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
50 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset
36
Notice, the Holder may, by written notice to the Trustee, revoke such tender or
repayment until the close of business on the tenth day before such Optional
Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Optional Extension of Maturity. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate, if any, provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
37
SECTION 309. Persons Deemed Owners. Prior to 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) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and none of the Company, the Guarantor (if a Guarantee is
endorsed on such Registered Security), the Trustee nor 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 none of the Company, the Guarantor
(if a Guarantee is endorsed on such Bearer Security), the Trustee nor 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 global
temporary or permanent Security, nothing herein shall prevent the Company, the
Guarantor, the Trustee, or any agent of the Company, the Guarantor or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Common Depositary or a U.S. Depositary, as the case
may be, or impair, as between a Common Depositary or a U.S. Depositary and
Holders of beneficial interests in such temporary or permanent global Security,
the operation of customary practices governing the exercise of the rights of the
Common Depositary or the U.S. Depositary as Holder of such temporary or
permanent global Security.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by the Trustee. The Company 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
38
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. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fifteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as
39
soon as practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee of each
such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
40
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and
such single currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the
date of such replacement equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market
Exchange Rate immediately before such division, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion
Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
An "Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such
41
other prior date for any series of Registered Securities as specified
pursuant to clause 13 of Section 301 by which the written election
referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent. (a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written
42
instrument delivered to the Company and the Trustee of the appropriate series of
Securities accepting such appointment executed by the successor Exchange Rate
Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series) and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency.
SECTION 314. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use),
and, if so, the Trustee shall indicate the respective "CUSIP", "CINS" or "ISIN"
numbers of the Securities in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company shall
advise the Trustee as promptly as practicable in writing of any change in CUSIP,
CINS or ISIN numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. Except
as set forth below, this Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto, any surviving rights of tender for repayment at the option of
the Holders and any right to receive Additional Amounts, as provided in Section
1007), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
43
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
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose, solely for
the benefit of the Holders, an amount in the Currency in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has irrevocably paid or caused to be
irrevocably paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 612 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive
any termination of this Indenture.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the
44
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 Persons entitled thereto, of the principal
(and premium, if any) and interest, if any, for whose payment such money has
been deposited with or received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article 16 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or is specifically deleted or modified in or pursuant to the
supplemental indenture or a Board Resolution establishing such series of
Securities or is in the form of Security for such series:
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable, at its
Maturity, upon acceleration, redemption or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series) and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company 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
45
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 90 consecutive
days; or
(5) 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 Company or, if
Guarantees are issued, the Guarantor in furtherance of any such action;
or
(6) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section 501(4)
or (5)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may, and the Trustee at the request of such Holders shall,
declare immediately due and payable, by a notice in writing to the Company and,
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, such portion of the principal amount as may be specified in the
terms of that series) of (and premium, if any) and accrued interest in respect
of each Security then Outstanding in that series (the "Default Amount"). Upon
any such declaration, the Default Amount shall become immediately due and
payable on all Outstanding Securities of that series. Notwithstanding any other
provision of this Section 502, if an Event of Default specified in Section
501(4) or (5) occurs then, the Default Amount on the Securities then Outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor, if applicable, and the Trustee may rescind and annul
such declaration and its consequences if:
46
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee (such
demand and payment in the case of Euro Securities to occur only outside of the
United States), for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons of
that series for principal (and premium, if any) and interest, if any, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest, if any, at the rate or rates borne by or provided for
in such Securities, and, in addition thereto, 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
47
the collection of the sums so due and unpaid, and may prosecute such proceeding
to judgment or final decree, and may enforce the same against the Company, the
Guarantor (if any related Guarantees are issued) or any other obligor upon
Securities of such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, the
Guarantor (if any related Guarantees are issued) or any other obligor upon
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, the Guarantor (if any related Guarantees are
issued) or any other obligor upon the Securities of a series or the property of
the Company, the Guarantor (if any related Guarantees are issued) or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company or, if applicable, the
Guarantor for the payment of any overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of
principal (or in the case of Original Issue Discount Securities, such
portion of the principal as may be provided in the terms thereof) (and
premium, if any) and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
(which distribution, in the case of Euro Securities, shall occur only
outside the United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, their agents and counsel, and any other amounts due the Trustee under
Section 606.
Subject to Article Eight and Section 902 and unless otherwise
provided as contemplated by Section 301, nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any
48
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or coupons, or both, as
the case may be (such presentation, in the case of Euro Securities or coupons,
to occur only outside the United States), and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: Subject to Article 16, to the payment (such payment,
in the case of Euro Securities, to occur only outside the United
States) of the amounts then due and unpaid upon the Securities and
coupons for principal (and premium, if any) and interest, if any, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities
and coupons for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons designated in writing by the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
49
(3) such Holder or Holders have offered to the Trustee an
indemnity, reasonably satisfactory to the Trustee, against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such Security
or payment of such coupon on the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date or, in
the case of repayment at the option of the Holders on the Repayment Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Guarantor, the Trustee and the Holders of Securities and coupons shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee may refuse to follow any direction which, in
the Opinion of Counsel to the Trustee, is unduly prejudicial to other
Holders of Securities of such series not consenting or would subject
the Trustee to personal liability.
SECTION 513. Waiver of Past Defaults. Subject to Section 502,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder with
respect to Securities of such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related
coupons, or
(2) in respect of a provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the 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,
51
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series, or in the payment
of any sinking fund installment with respect to the Securities of such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(3) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(2) Any request or direction of the Company 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 (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein), and any resolution of the Board of Directors of the
Company or the Guarantor may be sufficiently evidenced by a Board
Resolution.
(3) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon a Board Resolution,
an Opinion of Counsel or an Officer's Certificate.
(4) The Trustee may consult with counsel of its own selection
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and
52
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee in good faith
shall determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during
normal business hours to examine the books, records and premises of the
Company or, if any Guarantees are issued, the Guarantor, personally or
by agent or attorney.
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(8) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture.
(9) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limiation, its
right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacties hereunder.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, including any
Guarantees endorsed thereon, except the Trustee's certificate of authentication,
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 Paying
Agent, Security Registrar, Authenticating Agent 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
53
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company or
the Guarantor, as the case may be.
SECTION 606. Compensation and Reimbursement and
Indemnification of Trustee. The Company agrees:
(1) To pay to the Trustee or any predecessor Trustee from time
to time such reasonable compensation for all services rendered by it
hereunder as has been agreed upon from time to time in writing (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or such predecessor Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith.
(3) To indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
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SECTION 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION 609. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) Subject to Section 609(a) hereof, the Trustee may resign
at any time with respect to the Securities of one or more series by giving
written notice thereof to the Company and, if applicable, the Guarantor.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by an Officer's Certificate
delivered to the Trustee, provided that contemporaneously therewith (x) the
Company immediately appoints a successor Trustee with respect to the Securities
of such series meeting the requirements of Section 607 hereof and (y) the terms
of Section 610 hereof are complied with in respect of such appointment (the
Trustee being removed hereby agreeing to execute the instrument contemplated by
Section 610(b) hereof, if applicable, under such circumstances) and provided
further that no Default with respect to such Securities shall have occurred and
then be continuing at such time, or (ii) Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee, 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 has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company,
the Guarantor or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to an Officer's
Certificate may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
55
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution or Officer's Certificate, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company, 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 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, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the 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
56
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 Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
Whenever there is a successor Trustee with respect to one or more (but less than
all) series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definition of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company
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 611. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own
57
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 612. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents (which may be an Affiliate or
Affiliates of the Company) with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
58
Section, the Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint in accordance with this Section an
Authenticating Agent (which, if so requested by the Company, shall be an
Affiliate of the Company) having an office in a Place of Payment designated by
the Company with respect to such series of Securities, provided that the terms
and conditions of such appointment are acceptable to the Trustee.
59
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 neither the Company, the
Guarantor nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Security Registrar nor any agent of any of them shall be held accountable by
reason of the disclosure of any information as to the names and addresses of the
Holders of Securities in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 702. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 which meets the requirements of TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission, with the Company
and the Guarantor. The Company will promptly notify the Trustee of the listing
of the Securities on any stock exchange.
SECTION 704. Reports by Company and Guarantor. The Company
and, so long as any Securities in respect of which Guarantees have been issued
are Outstanding, the Guarantor, will:
(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
60
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;
(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 or the Guarantor, as the case may
be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations.
The Trustee shall transmit by mail to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company or the
Guarantor, as the case may be, pursuant to paragraphs (a) and (b) of this
Section.
SECTION 705. Calculation of Original Issue Discount. Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company 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 surviving Person in such
consolidation or merger (if other than the Company or the Guarantor, as the case
may be) or person to whom such property and assets are sold or conveyed (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, and such
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 applicable 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, (iii) 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
its property and assets to any
61
Subsidiary. For purposes of this Section, "sell or convey all or substantially
all of its property and assets" shall mean property and assets contributing in
the aggregate at least 80% of the Company's total consolidated revenues as
reported in the Company's last available periodic financial report (quarterly or
annual, as the case may be) filed with the Commission.
SECTION 802. Successor Person Substituted. Upon any
consolidation by the Company or the Guarantor with or merger by the Company or
the 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 term 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Unless otherwise specified in Section 902, without the consent of any
Holders of Securities or coupons, the Company and, if applicable, the Guarantor,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company 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
(2) 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
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
62
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into
or exchangeable for any securities of any Person (including the
Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1502 and 1503; provided that any such action shall
63
not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of all Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, and the
Trustee, the Company and, if applicable, the Guarantor, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
which affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of each such series
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or the terms of any sinking fund with respect to any
Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or repayment thereof at the option of the Holder, or change any
obligation of the Company to pay Additional Amounts as contemplated by
Section 1007 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or upon the redemption thereof or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the Currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption on or after the
Redemption Date or, in the case of repayment at the option of the
Holder, on or after the Repayment Date), or modify the provisions of
this Indenture with respect to the mandatory redemption of Securities
or repayment of the Securities at the option of the Holder in a manner
adverse to any Holder of any Securities or any coupons appertaining
thereto, or adversely affect any right to convert or exchange any
Security as may be provided pursuant to Section 301 herein,
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture,
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to
64
changes in the references to "the Trustee" and concomitant changes in
this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 610(b) and 901(8),
(4) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to the Holders;
or
(5) 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.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
65
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.
SECTION 907. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article Sixteen without the consent of such holder.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay, in the Currency or Currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series), the principal of (and premium, if any, on) and
any interest on the Securities of that series in accordance with the terms of
such Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the respective coupons for such
interest installments.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company will
maintain in each Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served, which agency
initially shall be The Bank of New York, 101 Barclay Street, New York, New York
10286, Attention: . If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside
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the United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Securities of that series pursuant to
Section 1007); provided, however, that, if the Securities of that series are
listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland, Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States, an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee and give prompt
notice to the Holders as provided in Section 106 of the location, and any change
in the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1007) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agent to receive all
such respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, if any, or interest
on Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to any account maintained with a financial institution located in the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of (and premium, if
any, on) and any interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, or the office or agency of the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, if any, interest or Additional Amounts, as
the case may be, at all offices or 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
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other office or agency. Unless otherwise specified with respect to any
Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in the Borough of Manhattan, The City of New York and as
its agent to receive all such presentations, surrenders, notices and demands.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company 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 or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or any interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency or
Currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due, such sum of money to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums of money for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
of money shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal of (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
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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 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 Article Eight,
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 its 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.
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 a Restricted Subsidiary of the
Company to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the maintenance of any of such properties or prevent
or restrict the sale, abandonment or other disposition of any of such properties
if such action is, in the judgment of the Company, desirable in the conduct of
the business of the Company and its Subsidiaries as a whole.
SECTION 1006. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent,
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(a) all material taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary of the Company or upon the income, profits or
property of the Company or any Subsidiary of the Company, and (b) all material
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon the property of the Company or any Subsidiary of the Company;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith.
SECTION 1007. Additional Amounts. If Securities of a series
provide for the payment of additional amounts to any Holder who is a non-United
States Person in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto such Additional Amounts as may be
so provided by Section 301. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of a
Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal (and premium,
if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any, on) or interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are non-United States Persons without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officer's Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to 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.
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SECTION 1008. Compliance Certificate. (a) The Company and, so
long as any Securities in respect of which 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, ending after the date hereof so long as any Security is Outstanding
hereunder, an Officer's Certificate, stating that in the course of the
performance by the signatory of his or her duties as such officer of the Company
or the Guarantor, as the case may be, they would normally obtain knowledge of
any Default by the Company in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture, and stating whether or not
they have obtained knowledge of any such Default existing on the date of such
statement and, if so, specifying each such Default of which the signatory has
knowledge and the nature thereof.
(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable upon
any officer listed in (a) above becoming aware of any Default, Event of Default
or default in the performance of any covenant, agreement or condition contained
in this Indenture, an Officer's Certificate specifying such Default, Event of
Default, default or event of default and what action the Company is taking or
proposes to take with respect thereto and the status thereof.
SECTION 1009. Waiver of Certain Covenants. With respect to the
Securities of any series, the Company 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.
SECTION 1010. Limitations on Liens. The Company shall not
create, assume or suffer to exist any Lien on any of its property or assets,
without securing the Securities of any applicable series equally and ratably
with (or prior to) such secured Indebtedness; provided, however, that the
foregoing shall apply only to Liens which in the aggregate exceed 15% of the
Company's total consolidated assets as of the end of the Company's most recent
accounting period preceding the creation or assumption of any such Lien (reduced
by any Attributable Debt with respect to any Sale and Leaseback Transaction
permitted under Section 1011 below). This restriction will not apply to
Capitalized Leases or to Indebtedness secured by (a) Liens existing on the date
hereof and Liens on property of, or Indebtedness of, any Person at the time such
Person becomes a Subsidiary (whether by acquisition or otherwise, including
through merger or consolidation), (b) Liens in favor of the Company or a
Subsidiary of the Company, (c) Liens existing at the time of acquisition of the
assets secured thereby (including acquisition through merger or consolidation)
and purchase money Liens, and (d) any extension, renewal or refunding of any
Lien referred to in the foregoing clauses (a) through (c), inclusive.
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SECTION 1011. Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Principal Property
unless (a) such Sale and Leaseback Transaction involves a lease for a term of
not more than three years; (b) such Sale and Leaseback Transaction is between
the Company and a Subsidiary of the Company or between Subsidiaries of the
Company; (c) the Company or such Restricted Subsidiary would be entitled to
incur indebtedness secured by a Lien on such Principal Property involved in such
Sale and Leaseback Transaction at least equal in amount to the Attributable Debt
with respect to such Sale and Leaseback Transaction pursuant to the first
sentence of the "Limitations on Liens" covenant in Section 1010 above without
equally and ratably securing the Securities of any applicable series pursuant to
such covenant; (d) the proceeds of such Sale and Leaseback Transaction are at
least equal to the fair market value thereof (as determined in good faith by the
Board of Directors of the Company) and the Company applies an amount equal to
the greater of the net proceeds of such sale or the Attributable Debt with
respect to such Sale and Leaseback Transaction within 180 days of such sale to
either (or a combination) of (i) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by payment at
maturity) of debt for borrowed money of the Company or a Subsidiary of the
Company that matures more than 12 months after its creation (other than debt
that is subordinated to the Securities or debt to the Company or a Subsidiary of
the Company) or (ii) the purchase, construction or development of other
comparable property; or (e) such Sale and Leaseback Transaction is entered into
within 180 days after the initial acquisition by the Company or such Restricted
Subsidiary, as the case may be, of the Principal Property subject to such Sale
and Leaseback Transaction.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by an
Officer's Certificate. In case of any redemption at the election of the Company
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed, and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities of any series (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officer's
Certificate evidencing compliance with such restriction or condition.
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SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate;
provided that such method complies with the rules of any national securities
exchange or quotation system on which the Securities are then listed, and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Except as otherwise
specified as contemplated by Section 301, notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender
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of such Security, the Holder will receive, without a charge, a new
Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Euro
Securities shall be outside the United States) where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory to
the Company, the Guarantor, if applicable, the Trustee for such series
and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003)) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company and, if
applicable, the Guarantor shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities shall cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and provided further
that, unless otherwise specified as contemplated by Section 301, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company, 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 Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company, 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
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the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered, 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. However, if less than all the Securities of any series
with differing issue dates, interest rates and stated maturities are to be
redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. Subject to Section 1203, the Company may, in satisfaction of all or
any part of any mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series to the Trustee
(other than any previously called for redemption or presented for repayment at
the option of the Holder) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been previously purchased or otherwise
acquired or redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the
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sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officer's
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not more than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
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, if
any, 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 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,
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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.
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, the Chief
Executive Officer, the Chief Operating Officer, the Financial Officer, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
Guarantees may be manual or facsimile.
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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 Thirteen shall remain in
full force and effect notwithstanding any failure to endorse on each Security a
notation of such Guarantee.
SECTION 1303. Subordination of Guarantees. Any Guarantee
issued by the Guarantor will be the unsecured senior subordinated obligation of
the Guarantor, ranking pari passu with all other existing and future senior
subordinated indebtedness of the Guarantor, if any. The Indebtedness evidenced
by such Guarantee will be subordinated on the same basis to Senior Indebtedness
of such Guarantor as the Securities are subordinated to Senior Indebtedness of
the Company under Article Seventeen.
SECTION 1304. 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 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 Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 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 the Repayment Price thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company or the
Guarantor is acting as Paying
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Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Repayment Price of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 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 Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire Repayment Price of such Security is to be repaid in
accordance with the terms of such Security, the portion of the Repayment Price
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of such Security
surrendered that is not to be repaid, must be specified. Any Security providing
for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 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 Repayment Price of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, unless otherwise specified
as contemplated by Section 301, in the case of Registered Securities,
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or
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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 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 any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 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 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 Fourteen.
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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 its
obligations with respect to the Outstanding Securities of such series and any
related coupons on and after the date the conditions precedent set forth below
are satisfied but subject to satisfaction of the conditions subsequent set forth
below (hereinafter, "defeasance"). For this purpose, such defeasance means that
the Company 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. Money and securities held in
trust pursuant to this Section 1502 shall not be subject to Article Sixteen.
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
its obligations under any Section(s) of this Indenture applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision with respect to the Outstanding Securities of such series and any
related coupons on and after the date the conditions precedent set forth below
are satisfied but subject to satisfaction of the conditions subsequent set forth
below (hereinafter, "covenant defeasance"), and such Securities and any related
coupons shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such Sections, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities of such series and any related coupons, the Company 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
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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) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (or other qualifying trustee), to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) each installment of
principal of (and premium, if any, on) and interest on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any)
or interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture, the Securities of such
series and the coupons, if any, appertaining thereto, and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any related coupons on the due dates
thereof. Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem
all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article
Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the
foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as paragraphs (4) and
(5) of Section 501 are concerned, at any time during the period ending
on the 91st day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in TIA Section 310(b) or otherwise for purposes of
the Trust Indenture Act with respect to any securities
83
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 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 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
84
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 Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
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 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 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 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.
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
85
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 and 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 entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 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 any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
86
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as
limited by the first paragraph of the proviso to Section 902, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of not less than a specified percentage, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 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
(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.
87
(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, each Holder of a Security
of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 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
fact, 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.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
SECTION 1701. Agreement to Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of
Securities by his or her acceptance thereof, likewise covenants and agrees, that
the payment of the principal of (and premium, if any) and interest, if any, on
each and all of the Securities is hereby expressly
88
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Indebtedness.
SECTION 1702. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
holders thereof by a lawful plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal (or premium, if any)
or interest, if any, on indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Seventeen shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders
of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be
paid over, upon written notice to the Trustee, to the holder of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior
89
Indebtedness until the principal of (and premium, if any) and interest, if any,
on the Securities shall be paid in full and no such payments or distributions to
the Holders of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of this Article
Seventeen are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand. Nothing contained in this Article
Seventeen or elsewhere in this indenture or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest, if any, on the
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or in the Securities prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this indenture, subject to the rights, if any, under this
Article Seventeen of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy. Upon any payment or distribution of assets of the Company referred to in
this Article Seventeen, the Trustee, subject to the provisions of Section 601,
shall be entitled to rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Seventeen.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness. The Trustee shall not be liable to
any such holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Seventeen.
If the Trustee or any Holder of Securities does not file a
proper claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim in
such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for or on
behalf of such Holder of Securities.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 1703. No Payment on Securities in Event of Default on
Senior Indebtedness. No payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall be
made unless full payment of amounts
90
then due for principal (premium, if any), sinking funds and interest on Senior
Indebtedness has been made or duly provided for in money or money's worth.
SECTION 1704. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 1702 and 1703, payments of principal of (or
premium, if any) or interest, if any, on the Securities or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Securities, unless the Trustee shall have received at its
Corporate Trust Office written notice of any event prohibiting the making of
such payment more than two Business Days prior to the date fixed for such
payment.
SECTION 1705. Authorization of Holders to Trustee to Effect
Subordination. Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article
Seventeen and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1706. Notices to Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, neither
the Trustee nor any Paying Agent (other than the Company) shall be charged with
knowledge of the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until the Trustee or such Paying Agent shall have
received (in the case of the Trustee, at its Corporate Trust Office) written
notice thereof from the Company or from the holder of any Senior Indebtedness or
from the trustee for any such holder, together with proof satisfactory to the
Trustee of such holding of Senior Indebtedness or of the authority of such
trustee; provided, however, that if at least two Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of either the principal (or
premium, if any) or interest, if any, on any Security) the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section 1706, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary, which may be received by it within two
Business Days prior to such date. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Indebtedness
or a trustee on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Seventeen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Seventeen and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
91
SECTION 1707. Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article Seventeen in respect of any Senior Indebtedness at any time held
by it to the same extent as any other holder of Senior Indebtedness and nothing
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
Nothing in this Article Seventeen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1708. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights under
any instrument creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done all without
notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Seventeen or of the Securities relating to the subordination thereof.
SECTION 1709. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article Seventeen, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Seventeen.
* * * * *
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.
92
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
VIACOM INC.,
as Issuer
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Viacom Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
A-1-2
This certificate excepts and does not relate to [U.S.$] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 20
--------------------------- ---
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source ("United States person(s)"), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise Viacom
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated: , 20
--------------------------- ---
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Euroclear Bank S.A./N.V.,
as Operator of the Euroclear System]
[Clearstream Banking, societe anonyme]
By:
---------------------------------
Name:
Title
Exhibit 4.4
- --------------------------------------------------------------------------------
VIACOM INC.
[VIACOM INTERNATIONAL INC.]*
STANDARD PREFERRED STOCK WARRANT
AGREEMENT PROVISIONS
- --------------------------------------------------------------------------------
- ---------------------
* If co-issued by Viacom International, add the language in brackets relating
to Viacom International co-issuing the Warrants.
i
- --------------------------------------------------------------------------------
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Article 1 Issuance, Execution and Delivery of Warrant Certificates
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Section 1.1 Issuance of Warrant Certificates..............................1
Section 1.2 Execution and Delivery of Warrant Certificates................2
Section 1.3 Registration and Countersignature.............................4
Article 2 Warrant Price, Duration and Exercise of Warrant Certificates
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Section 2.1 Warrant Price.................................................4
Section 2.2 Duration of Warrant Certificates..............................5
Section 2.3 Exercise of Warrant Certificates..............................5
Article 3 Other Provisions Relating to Rights of Holders of Warrant Certificates
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Section 3.1 No Rights as Securityholders Conferred by Warrant
Certificates..................................................7
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.....7
Section 3.3 Holder of Warrant Certificate May Enforce Rights..............8
Section 3.4 Call of Warrants by the Company...............................9
Section 3.5 Optional Reduction of Warrant Price...........................9
Section 3.6 Reservation of Shares........................................10
Section 3.7 [Intentionally omitted]......................................11
Section 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants............................11
Section 3.9 Fractional Warrants and Fractional Shares....................16
Section 3.10 Notices to Warrantholders...................................17
Article 4 Exchange and Transfer of Warrant Certificates
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Section 4.1 Exchange and Transfer........................................19
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Section 4.2 Treatment of Holders of Warrant Certificates.................20
Section 4.3 Cancellation of Warrant Certificates.........................21
Article 5 Concerning the Warrant Agent
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Section 5.1 Warrant Agent................................................21
Section 5.2 Conditions of Warrant Agent's Obligations....................22
Section 5.3 Registration and Appointment of Successor Warrant Agent......25
Article 6 Miscellaneous
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Section 6.1 Supplements and Amendments...................................28
Section 6.2 Notices and Demands to the Company and Warrant Agent.........28
Section 6.3 Addresses....................................................28
Section 6.4 Delivery of Prospectus.......................................29
Section 6.5 Obtaining of Governmental Approvals..........................29
Section 6.6 Persons Having Rights under Warrant Agreement................29
Section 6.7 Headings.....................................................30
Section 6.8 Counterparts.................................................30
Section 6.9 Inspection of Agreement......................................30
Section 6.10 Governing Law...............................................30
Section 6.11 Successors..................................................30
Section 6.12 Termination.................................................31
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From time to time, Viacom Inc., a Delaware corporation (the
"Company") [, and Viacom International Inc., a Delaware corporation (the
"Co-Issuer")], may enter into one or more warrant agreements that provide for
the issuance and sale of warrants ("Warrants") to purchase shares of the
Company's Preferred Stock, $0.01 par value [of which the redemption price and
the liquidation amount shall be guaranteed by the Co-Issuer] ("Shares"). The
standard provisions set forth herein may be included or incorporated by
reference in any such warrant agreement (a "Warrant Agreement"). The Warrant
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this "Agreement." The person named as the "Warrant Agent" in the
first paragraph of the Warrant Agreement is herein referred to as the "Warrant
Agent." Unless otherwise defined in this Agreement or in the Warrant Agreement,
as the case may be, terms defined in the Warrant Agreement are used herein as
therein defined and terms defined herein are used in the Warrant Agreement as
herein defined.
Article 1
Issuance, Execution and Delivery of Warrant Certificates
Section 1.1 Issuance of Warrant Certificates. Each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase such numbers of Shares as are set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of the
Board of Directors of the Company or any duly authorized committee thereof or
established in one or more warrant agreements supplemental hereto, prior to the
issuance of any Warrants: the designation of such
Warrants; if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants shall be freely
tradable separately from such other securities (the "Distribution Date"); if the
Company may at its option or under circumstances described therein provide for
an earlier Distribution Date; the expiration date, pursuant to Section 2.2; the
exercise price and any form of consideration other than lawful money of the
United States of America by which the exercise price may be paid pursuant to
Section 2.1; the Call Price, Call Date and Call Terms pursuant to Section 3.4;
the limitations, if any, upon the Reduced Warrant Price and the Reduced Warrant
Price Period, pursuant to Section 3.5; the circumstances, if any, under which
the Exercise Price and the number of Shares purchasable upon the exercise of
each Warrant and the number of Warrants outstanding are subject to adjustment
and the manner of making any such adjustment.
Section 1.2 Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in such form or forms as shall be established by the Company [and the Co-Issuer]
from time to time pursuant to one or more resolutions of the Board of Directors
of the Company [and the Co-Issuer] or in one or more warrant agreements
supplemental hereto, and in each case shall be dated as of the date of issuance
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company [and the Co-Issuer] executing the Warrant
Certificate may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with (i) any law or with any rule or regulation
made pursuant thereto or (ii) any rule or regulation of any stock exchange on
which the Warrant Certificates may be listed, or to conform to usage. The
Warrant Certificates
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shall be signed on behalf of the Company by its Chairman of the Board of
Directors, its Chief Operating Officer, its President, its Chief Financial
Officer, a Vice President or its Treasurer and attested by its Secretary or
Assistant Secretary. [The Warrant Certificates shall be signed on behalf of the
Co-Issuer by its Chairman of the Board of Directors, its Chief Operating
Officer, its President, its Chief Financial Officer, a Vice President or its
Treasurer and attested by its Secretary or Assistant Secretary.] Such signatures
may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company [and the Co-Issuer] shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly delivered hereunder.
If any officer of the Company [or of the Co-Issuer] who shall have
signed any of the Warrant Certificates either manually or by facsimile signature
shall cease to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered to the Warrant Agent, such Warrant
Certificates nevertheless may be countersigned and delivered as though the
person who signed such Warrant Certificates had not ceased to be such officer of
the Company [or of the Co-Issuer, as the case may be]. Any Warrant Certificate
may be signed on behalf of the Company [and the Co-Issuer] by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company [and the Co-Issuer, respectively], although at
the date of the execution of this Agreement any such persons was not an officer.
3
Section 1.3 Registration and Countersignature. The Warrant Agent
shall, upon receipt of Warrant Certificates, duly executed on behalf of the
Company [and the Co-Issuer], countersign the Warrant Certificates evidencing
Warrants to purchase the number of Shares set forth in the Warrant Agreement and
shall deliver such Warrant Certificates to the appropriate person or entity upon
the order of the Company [and the Co-Issuer]. After the original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for, or in
connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided. The Warrant
Certificates shall not be valid for any purpose unless so countersigned.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_________________________________
Authorized Signatory
Article 2
Warrant Price, Duration and Exercise of Warrant Certificates
Section 2.1 Warrant Price. The exercise price of each Warrant and
any other form of consideration other than lawful money of the United States of
America by which the exercise price may be paid shall be as set forth in the
Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Shares upon exercise of the Warrants is referred to in
this Agreement as the "Warrant Price" and is payable in full at the time of
exercise.
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Section 2.2 Duration of Warrant Certificates. Warrant Certificates
may be exercised in whole at any time, and in part from time to time, during the
period set forth in the Warrant Agent (the "Expiration Date"). Each Warrant
Certificate not exercised on or before the close of business on the Expiration
Date shall become void, and all rights of the holder thereunder and under this
Agreement shall cease.
Section 2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Shares as to which the Warrant Certificate is
exercised, to the Warrant Agent at its corporate trust office at the address set
forth in the Warrant Agreement. The payment must specify the name of the holder
and the number of Warrants exercised by such holder. Warrants will be deemed to
have been exercised upon receipt by the Warrant Agent of the Warrant Price and
the Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the
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Warrant Agent shall deliver such consideration directly to the Company. In
either case, the Warrant Agent shall advise the Company [and the Co-Issuer] by
telex or telecopy at the end of each day as to the Warrant Certificates that
have been exercised and the amount of moneys deposited to its account or the
type and amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Co-Issuer] of (i) the number of
Warrants exercised, (ii) the instructions of each holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Shares to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company [and the Co-Issuer]
shall reasonably require.
(c) As soon as practicable after receipt of payment of the Warrant
Price and the Warrant Certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent, the Company shall issue or deliver,
upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as maybe directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant
Certificate evidencing the number of Warrants remaining unexercised shall be
issued if sufficient time remains prior to the Expiration Date. [Simultaneously,
the Co-Issuer shall enter into a Preferred Stock Guarantee Agreement with
respect to the Shares to which such holder is entitled, and if such Warrant
Certificate was not exercised in full, upon request of the holder, shall execute
and deliver together with the Company the above-mentioned new Warrant
Certificate evidencing the
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number of Warrants remaining unexercised shall be issued if sufficient time
remains prior to the Expiration Date.]
(d) The Company [and the Co-Issuer] shall not be required to
pay any tax or taxes which may be payable in respect of any transfer involved in
the issue of any Warrant Certificates or any certificates for Shares in a name
other than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company [and the Co-Issuer] shall not be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company [and the
Co-Issuer] the amount of such tax or shall have established to the satisfaction
of the Company [and the Co-Issuer] that such tax has been paid.
Article 3
Other Provisions Relating to Rights of
Holders of Warrant Certificates
Section 3.1 No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a stockholder of the Company, [or to any rights to guarantee
payments by the Co-Issuer] including the right to receive the payment of
dividends on or vote the Shares.
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company [, the Co-Issuer] and the Warrant
Agent of evidence reasonably
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satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of the Warrant Certificate, and of such security or indemnity as may
be required by them to save each of them harmless, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company [, the Co-Issuer] or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company [and the Co-Issuer] shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, in exchange for or in lieu
of the lost, stolen or destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company [and the
Co-Issuer] may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expense (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall constitute an additional contractual obligation of the Company [and the
Co-Issuer], whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions of
this Section are exclusive and shall preclude (to the extent lawful) any and all
other rights or remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
Section 3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the holder of any
Shares or the holder of any other Warrant
8
Certificate, may, in his or her own behalf and for his or her own benefit,
enforce, and may institute and maintain any action or proceeding against the
Company [and the Co-Issuer] to enforce or otherwise in respect of, his or her
right to exercise his or her Warrant Certificate in the manner provided in his
or her Warrant Certificate and in his or her Agreement.
Section 3.4 Call of Warrants by the Company. If so provided in the
Warrant Agreement, the Company shall have the right to call and repurchase any
or all Warrants at the price (the "Call Price") and on or after the date (the
"Call Date") and upon the terms (the "Call Terms") as shall be established from
time to time in or pursuant to the Warrant Agreement before the issuance of such
Warrants, or to resolutions of the Board of Directors of the Company. Notice of
such Call Price, Call Date and Call Terms shall be given to registered holders
of Warrants in writing by the Company or the Warrant Agent.
Section 3.5 Optional Reduction of Warrant Price. Subject to the
limits, if any, established from time to time by the Board of Directors of the
Company or in the Warrant Agreement, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Warrant Price
to such amount (the "Reduced Warrant Price") and for such period or periods of
time, which may be through the close of business on the Expiration Date (the
"Reduced Warrant Price Period"), as may be deemed appropriate by the Board of
Directors of the Company. Notice of any such Reduced Warrant Price and Reduced
Warrant Price Period shall be given to registered holders of Warrants in writing
by the Company or the Warrant Agent. After the termination of the Reduced
Warrant Price Period, the Warrant Price shall be such Warrant Price that would
have been in effect had there been no reduction in the Warrant Price pursuant to
the provisions of this Section 3.5.
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Section 3.6 Reservation of Shares. For the purpose of enabling it
to satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Preferred Stock, the number of
Shares deliverable upon the exercise of all outstanding Warrants, and the
transfer agent for the shares is hereby irrevocably authorized and directed at
all times to reserve such number of authorized and unissued or treasury shares
of Preferred Stock as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
transfer agent with duly executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant
to Section 3.7 reducing the Exercise Price below the then par value (if any) of
the Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
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Section 3.7 [Intentionally omitted].
Section 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 3.8.
(a) If the Company shall (i) pay a dividend on its capital stock
(including Preferred Stock) in shares of Stock, (ii) subdivide its outstanding
shares of Preferred Stock (iii) combine its outstanding shares of Preferred
Stock into smaller number of shares of Preferred Stock or (iv) issue any shares
of its capital stock in a reclassification of the Preferred Stock (including any
such reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be adjusted so that the
holder of each Warrant shall be entitled to receive the kind and number of
Shares or other securities of the Company which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above, had such Warrant been exercised immediately prior to the happening of
such event or any record date with respect thereto. An adjustment made pursuant
to this paragraph (a) shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Preferred Stock (except as provided in paragraph (a)
above or paragraph (h) below), any holder of Warrants upon exercise thereof
shall be entitled to receive, in lieu of the Preferred Stock to which he or she
would have become entitled upon exercise immediately prior to such
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reorganization or reclassification, the shares (of any class or classes) or
other securities or property of the Company that he or she would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 3.8
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Warrant Price between or among shares
of classes of capital stock), to the end that this Section 3.8 (including the
adjustments of the number of shares of Preferred Stock or other securities
purchasable and the Warrant Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of
each Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided
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in paragraph (f), the Exercise Price payable upon exercise of each Warrant shall
be adjusted by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of Shares
purchasable upon the exercise of each Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Shares so
purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of
Stock" shall mean (i) the class of stock designated as the Preferred Stock of
the Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, from par value to no par value, or from no par
value to par value. If at any time, as a result of an adjustment made pursuant
to paragraph (a) or (b) above, the holders of Warrants shall become entitled to
purchase any shares of the Company other than shares of Stock, thereafter the
number of such other shares so purchasable upon exercise of each Warrant and the
Exercise Price of such shares shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Shares contained in paragraphs (a) through (d), inclusive,
above, and the provisions of Section 2.1, 2.2, 2.3, 3.6, 3.7(a) and 3.10, with
respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (b) of this Section 3.8, to adjust the number
of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of shares as immediately prior to such adjustment. Each Warrant held
of record prior to such adjustment of the number of Warrants shall become that
number of Warrants
13
(calculated to the nearest hundredth) obtained by dividing the Warrant Price in
effect prior to adjustment of the Warrant Price by the Warrant Price in effect
after adjustment of the Warrant Price. The Company shall notify the holders of
Warrants in the same manner as provided in the first paragraph of Section 3.10,
of its election to adjust the number of Warrants, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Exercise Price is adjusted
or any day thereafter. Upon each adjustment of the number of Warrants pursuant
to this paragraph (f) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 3.9, the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if required
by the Company, new Warrant Certificates evidencing all the Warrants to be
issued, executed and registered in the manner specified in Section 1.3 and
Article 4 (and which may bear, at the option of the Company, the adjusted
Exercise Price) and shall be registered in the names of the holders of record of
Warrant Certificates on the record date specified in the notice.
(g) Except as provided in paragraph (a) of this Section 3.8, no
adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of
the Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such
14
successor or purchasing corporation, as the case may be, shall execute with the
Warrant Agent [and the Co-Issuer] an agreement that each holder of a Warrant
shall have the right thereafter upon payment of the Warrant Price in effect
immediately prior to such action to purchase upon exercise of each Warrant the
kind and amount of shares and other securities and property which he or she
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3.8. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness of any
provisions contained in any such agreement relating either to the kind or amount
of shares of stock or other securities or property receivable upon exercise of
Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any
such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
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Section 3.9 Fractional Warrants and Fractional Shares.
(a) The Company [and the Co-Issuer] shall not be required to issue
fractions of Warrants on any distribution of Warrants to holders of Warrant
Certificates or to distribute Warrant Certificates that evidence fractional
Warrants. In lieu of such fractional Warrants, there shall be paid to the
registered holder of the Warrant Certificates with regard to which such
fractional Warrants would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a full Warrant. For purposes of
this Section 3.9, the current market value of a Warrant shall be the closing
price of one Warrant (as determined pursuant to paragraph (c) below) for the
trading day immediately prior to the date on which such fractional Warrant would
have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to this Section 3.9 in
the number of Shares purchasable upon the exercise of a Warrant, the Company
shall not be required to issue, and the Co-Issuer shall not be required to
guarantee, fractions of Shares upon exercise of the Warrants or to distribute
certificates which evidence fractional Shares. In lieu of fractional Shares,
there shall be paid to the registered holders of Warrant Certificates at the
time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of
Preferred Stock. For purposes of this Section 3.9, the current market value of a
share of Preferred Stock shall be the closing price of a share of Preferred
Stock (as determined pursuant to paragraph (c) below) for the trading day
immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price,
regular way, or, if no such sale takes place on such day, the average of the
closing bid and asked prices, regular
16
way, for such day, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Warrants or Stock, as the case
may be, is not listed or admitted to trading on such exchange, as reported on
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Warrants or Preferred Stock, respectively, is listed or admitted to trading, or
if the Warrants or Preferred Stock, as the case may be, is not listed or
admitted to trading on any national securities exchange, as reported on Nasdaq
National Market or, if the Warrants or Stock, as the case may be, is not listed
or admitted to trading on the Nasdaq National Market, as reported on Nasdaq.
Section 3.10 Notices to Warrantholders. Upon any adjustment of the
number of Shares purchasable upon exercise of each Warrant, the Warrant Price or
the number of Warrants outstanding, the Company within 20 calendar days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a
firm of independent public accountants of recognized standing selected by the
Company (who may be the regular auditors of the Company) setting forth the
Warrant Price and either the number of Shares purchasable upon exercise of each
Warrant or the additional number of Warrants to be issued for each previously
outstanding Warrant, as the case may be, after such adjustment and setting forth
in reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register written notice of such adjustments by first
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the other
provisions of this Section 3.10.
17
The Company shall cause written notice of any later Distribution
Date, any later Expiration Date, any Call Price, Call Date and Call Terms and
any Reduced Exercise Price and Reduced Exercise Price Period, as the case may
be, to be given as soon as practicable to the Warrant Agent and to each of the
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In addition
to the written notice referred to in the preceding sentence, the Company shall
make a public announcement in a daily morning newspaper of general circulation
in New York City of such earlier Distribution Date, such later Expiration Date,
such Call Price, Call Date and Call Terms and such Reduced Exercise Price and
Reduced Exercise Price Period, as the case may be, at least once prior to the
implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Preferred Stock or make any distribution
(other than a cash dividend) to the holders of is shares of Preferred
Stock, or
(b) the Company shall offer to the holders of its shares of
Preferred Stock any additional shares of Preferred Stock or securities
convertible into shares of Preferred Stock or any right to subscribe
thereto, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale
of all or substantially all of its property, assets and business as an
entirety),
18
the Company shall cause written notice of such event to be filed
with the Warrant Agent and shall cause written notice of such event to be given
to each of the registered holders of the Warrant Certificates as such holder's
address appearing on the Warrant Register, by first class mail, postage prepaid,
and make a public announcement in a daily newspaper of general circulation in
New York City of such event, such giving of notice and publication to be
completed at least 10 calendar days (or 20 calendar days in any case specified
in clause (c) above) prior to the date fixed as a record date or the date of
closing the transfer books for the determination of the stockholders entitled to
such dividend, distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to give the notice required
by this Section 3.10 or any defect therein shall not affect the legality or
validity of any distribution, right, warrant, dissolution, liquidation or
winding up or the vote upon or any other action taken in connection therewith.
Article 4
Exchange and Transfer of Warrant Certificates
Section 4.1 Exchange and Transfer. Upon surrender at the corporate
trust office of the Warrant Agent, Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants and the transfer of Warrants may be registered in whole or in part;
provided that such other Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates surrendered for exchange or
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant
19
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office for exchange or registration of transfer, properly
completed and duly endorsed and duly signed by the registered holder or holders
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed (under the Medallion
Program) by (a) a bank or trust company, (b) a broker or dealer that is a member
of the Nasdaq or (c) a member of a national securities exchange and accompanied
by appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company [, the Co-Issuer] and the
Warrant Agent. No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates, but the Company [and the Co-Issuer] may
require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are surrendered for
exchange or registration of transfer, an authorized officer of the Warrant Agent
shall mutually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificate duly authorized and executed by the
Company [and the Co-Issuer], as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer that will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company [and the Co-Issuer], evidencing
the same obligations and entitled to the same benefits under this Agreement as
the Warrant Certificates surrendered for such exchange or registration of
transfer.
Section 4.2 Treatment of Holders of Warrant Certificates. Every
holder of a Warrant Certificate, by accepting the same, consents and agrees with
the Company, [the Co-
20
Issuer,] the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent, the Company [, the Co-Issuer] and the Warrant
Agent may treat the registered holder as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time, or otherwise dispose of, canceled Warrant Certificates in manner
satisfactory to the Company [and the Co-Issuer].
Article 5
Concerning the Warrant Agent
Section 5.1 Warrant Agent. The Company [and the Co-Issuer] hereby
appoint[s] the Warrant Agent as the Warrant Agent of the Company [and the
Co-Issuer] in respect of the Warrant Certificates upon the terms and subject to
the conditions herein set forth, and the Warrant Agent hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and by this Agreement, and
such further powers and authority to act on behalf of the Company [and the
Co-Issuer] as the Company [and the Co-Issuer, respectively,] may hereafter grant
to or confer upon it. All of the
21
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
Section 5.2 Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following (to all of which the Company [and the Co-Issuer]
agree[s] and to all of which the rights hereunder of the holders from time to
time of the Warrant Certificates shall be subject):
(a) Performance by the Company [and the Co-Issuer]. The Company
[and the Co-Issuer each] agree[s] that it will take any corporate
action that may be reasonably necessary in order to fulfill its
obligations under this Agreement, and the Warrant Certificates, and
that it will not take any action that would materially impair its
ability to perform its obligations under this Agreement and the Warrant
Certificates.
(b) Compensation and Indemnification. The Company [and the
Co-Issuer] agree[s] promptly to pay the Warrant Agent the compensation
to be agreed upon with the Company [and the Co-Issuer] for all services
rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company [and the Co-Issuer] also
agree[s] to indemnify the Warrant Agent, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as
the reasonable costs and expenses of defending against any claim of
liability in the premises.
22
(c) Agent for the Company [and the Co-Issuer]. In acting under
this Warrant Agreement and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as an agent of the Company [and the
Co-Issuer], and the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any of the owners or
holders of the Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers,
directors and employees may buy, sell or deal in any of the Shares or
other securities of the Company [and the Co-Issuer] and may become the
owner of, or acquire any interest in, any Warrant Certificates, with
the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, they
may engage or be interested in any financial or other transaction with
the Company [and the Co-Issuer] and may act on, or as depositary,
trustee or agent for, any committee or body of holders of the
23
Shares or other obligations of the Company [and the Co-Issuer] as
freely as if it were not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for
interest on any moneys or other consideration at any time received by
it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not incur
any liability with respect to the validity of this Agreement or any of
the Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations contained
herein or in the Warrant Certificates (except the Warrant Agent shall
be responsible for any representations of the Warrant Agent herein and
for its countersignature on the Warrant Certificates), all of which are
made solely by the Company [or the Co-Issuer, as the case may be].
(j) No Implied Obligations. The Warrant Agent shall be obligated
to perform such duties as are herein and in the Warrant Certificates
specifically set forth, but no implied duties or obligations shall be
read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to
take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or
for the
24
application or by the Company [and the Co-Issuer] of the proceeds of
the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company [of the Co-Issuer]
in the performance of its covenants or agreements contained in the
Warrant Certificates or in the case of the receipt of any written
demand from a holder or a Warrant Certificate with respect to such
default, including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demands
upon the Company [or the Co-Issuer].
(k) Instructions. The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer, the
Secretary or any Assistant Secretary of the Company [and the Co-Issuer,
respectively], and to apply to such officers for advice or instructions
in connection with its duties, and shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any
statement signed by any one of such officer of the Company [or of the
Co-Issuer] with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed
to be conclusively proved and established by such signed statement.
Section 5.3 Registration and Appointment of Successor Warrant
Agent.
(a) The Company [and the Co-Issuer] agree, for the benefit of the
holders from time to time of the Warrant Certificates, that at all times there
shall be a Warrant Agent hereunder until all the Warrant Certificates are no
longer exercisable.
25
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company [and the Co-Issuer] of such intention on
its part, specifying the date on which its desired resignation shall become
effective; provided that such date shall not be less than 60 days after the date
on which such notice is given unless the Company [and the Co-Issuer] agree[s] to
accept less notice. The Warrant Agent may be removed at any time by the filing
with it of an instrument in writing signed by or on behalf of the Company [and
the Co-Issuer] and specifying such removal and the date when it shall become
effective. Such resignation or removal shall take effect upon the appointment by
the Company [and the Co-Issuer], as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and
authorized under such laws to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. Upon its
resignation or removal, the Warrant Agent shall be entitled to the payment by
the Company [and the Co-Issuer] of the compensation agreed to under Section
5.2(b) hereof for, and to the reimbursement of all reasonable out-of-pocket
expenses incurred in connection with, the services rendered hereunder by the
Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property
26
shall be appointed, or if an order of any court shall be entered for relief
against it under the Federal Bankruptcy Code, as now constituted or hereafter
amended, or under any other applicable federal or state bankruptcy or similar
law or if any public officer shall have taken charge or control of the Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified in accordance
with the terms of this Agreement, shall be appointed by the Company [and the
Co-Issuer] by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment of a successor Warrant Agent and acceptance by the latter
of such appointment, the Warrant Agent so superseded shall cease to be the
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company [and the
Co-Issuer] an instrument accepting such appointment hereunder, and thereupon
such successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that is shall be
27
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
Article 6
Miscellaneous
Section 6.1 Supplements and Amendments. This Agreement may be
amended or supplemented from time to time by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein, or in regard to matters or questions arising under this
Agreement as the Company [, the Co-Issuer] and the Warrant Agent may deem
necessary or desirable, provided such action shall not adversely affect the
interest of the holders of the Warrant Certificates.
Section 6.2 Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
[or the Co-Issuer] by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly forward
such notice or demand to the Company [or the Co-Issuer, as applicable].
Section 6.3 Addresses. Any communication to the Warrant Agent with
respect to this Agreement shall be addressed to the address set forth in the
Warrant Agreement, and any such communication to the Company [and the Co-Issuer]
shall be addressed to the Company at the following address:
28
Viacom Inc.
[or Viacom International Inc.]
1515 Broadway
New York, New York 10036
Attention: [ ]
or such other address as shall be specified in writing by the Warrant Agent or
by the Company [or the Co-Issuer].
Section 6.4 Delivery of Prospectus. If the Company [and the
Co-Issuer] [are/is] required under applicable federal or state securities laws
to deliver a prospectus upon exercise of Warrants, the Company [and the
Co-Issuer] will furnish to the Warrant Agent sufficient copies of a prospectus,
and the Warrant Agent agrees that upon the exercise of any Warrant Certificate
by the holder thereof, the Warrant Agent will deliver to such holder, prior to
or concurrently with the delivery of the Shares issued upon such exercise, a
copy of the prospectus.
Section 6.5 Obtaining of Governmental Approvals. The Company [and
the Co-Issuer] will from time to time take all action that may be necessary to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings under federal
and state laws, which may be or become requisite in connection with the
issuance, sale, transfer and delivery of the Warrant Certificates, the exercise
of the Warrants, and the issuance, sale, transfer and delivery of the Shares
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
Section 6.6 Persons Having Rights under Warrant Agreement. Nothing
in this Agreement is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the Company, [the Co-Issuer,] the
Warrant Agent and the holders of the Warrant Certificates, any right, remedy or
claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof. All covenants, conditions,
29
stipulations, promises and agreements contained in this Agreement shall be for
the sole and exclusive benefit of the Company, [the Co-Issuer,] the Warrant
Agent and their successors and of the holders of the Warrant Certificates.
Section 6.7 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 6.9 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
Section 6.10 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
Section 6.11 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company [, the Co-Issuer] or the Warrant
Agent shall bind and inure to the benefit of their respective successors and
assigns hereunder.
30
Section 6.12 Termination. This Agreement shall terminate at the
close of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when the Warrants have been
exercised.
31
EXHIBIT 4.5
VIACOM INC.
[VIACOM INTERNATIONAL INC.] *
AND
---------------------------------------------,
Warrant Agent
DEBT WARRANT AGREEMENT
Providing for the Issuance of
% Notes/Debentures Due Purchase Warrants
Dated as of ____________, 20__
- ------------------------
* If Viacom International is a co-issuer, add the language in brackets
relating to Viacom International co-issuing the Warrants.
DEBT WARRANT AGREEMENT
THIS DEBT WARRANT AGREEMENT is entered into as of , 20__ between
Viacom Inc., a corporation incorporated under the laws of Delaware (the
"Company") [, Viacom International, Inc., a corporation incorporated under the
laws of Delaware, (the "Co-Issuer")] and _____________________, a ________
incorporated under the laws of ____________ (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants, each Warrant
entitling the registered owner thereof to purchase ___% Notes/Debentures Due
_______ of the Company [, which Notes/Debentures will be guaranteed by the
Co-Issuer] (the "Debt Securities"), which will be issued pursuant to the
Indenture, at the price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as
provided in this Agreement; and
WHEREAS, all things necessary have been done and performed to make
the Warrants when duly authenticated by the Agent and issued as in this
Agreement provided legal and valid and binding upon the Company with the
benefits and subject to the terms of this Agreement.
WHEREAS, the Co-Issuer proposes to co-issue the Warrants; and
WHEREAS, the Co-Issuer is duly authorized to issue the Warrants as provided in
this Agreement; and WHEREAS, all things necessary have been done and performed
to make the Warrants when duly authenticated by the Agent and issued as in this
Agreement provided legal and valid and binding upon the Co-Issuer with the
benefits and subject to the terms of this Agreement.] NOW, THEREFORE, THIS
AGREEMENT WITNESSETH that for good and valuable consideration mutually given and
received, the receipt and sufficiency whereof is hereby acknowledged, it is
hereby agreed and declared as follows:
Article I
DEFINITIONS
SECTION 1.1. Definitions. Except as otherwise expressly provided
or unless the context otherwise requires, the terms defined in this Section 1.1
shall for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
The term "Agent" shall mean _____________, a _________
incorporated under the laws of ____________ or its lawful successors from
time to time appointed in accordance with this Agreement.
The term "Agreement" shall mean this Debt Warrant Agreement
between the Company and the Agent, as such agreement is originally executed
or as it may from time to time be supplemented, modified or amended as
provided herein.
The term "Business Day" shall mean any day which is not a Saturday
or Sunday or which in the City of New York or ____________ is neither a
legal holiday nor a day on which banking institutions are authorized by law
or regulation to close.
The term "Co-Issuer" shall mean Viacom International Inc., a
Delaware corporation, the guarantor of the Debt Securities to be issued
upon exercise of the Warrants, until a successor entity shall have become
such pursuant to the applicable provisions of this Agreement and thereafter
the term "Co-Issuer" shall mean such successor entity.
The term "Company" shall mean Viacom, Inc., a Delaware
corporation, until a successor entity shall have become such pursuant to
the applicable provisions of this Agreement and thereafter the term
"Company" shall mean such successor entity.
The term "Debt Securities" means any or all, as the case may be,
of the Company's ___% Notes/Debentures Due ___________, [fully and
unconditionally guaranteed by the Co-Issuer] authenticated and delivered as
provided in the Indenture.
The term "Event of Default" shall mean any event specified as such
in Section 6.1 hereof. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
The term "Exercise Date" shall mean each date during the Exercise
Period on which [Notes/Debentures] are purchased by a Registered Owner
through the exercise of all or a portion of its Warrants.
The term "Exercise Form" shall mean the form designated Exercise
Form attached as Annex II to each Warrant.
The term "Exercise Period" shall mean the period commencing at
9:00 A.M. ( -------------- time) on _____________, 20__ and ending at 4:00
P.M. (___________ time) on _____________, _____.
The term "Exercise Price" shall have the meaning accorded such
term in Section 2.1 of this Agreement.
The term "Guarantee" or "Guarantees" shall mean the guarantees
relating to the Debt Securities to be issued by Viacom International Inc.
as provided in the Indenture.
2
The term "Indenture" shall mean that certain Indenture dated as of
___________ between the Company and ___________, as trustee, as such
Indenture was originally executed or as it may from time to time be
supplemented, modified or amended in accordance with the terms thereof.
The term "Notice of Intent to Exercise" shall have the meaning
accorded thereto in Section 4.1 of this Agreement. The form of Notice of
Intent to Exercise is attached as Annex I to each Warrant.
The term "Outstanding" when used with reference to the Warrants
shall mean, as of the date of determination, all Warrants theretofore
authenticated and delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or
delivered to the Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other
Warrants shall have been authenticated and delivered under
this Agreement.
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization, or a government or any agency,
authority or political subdivision thereof.
The term "Register" shall mean the books for the registration and
transfer of Warrants which books are kept by the Agent pursuant to Section
3.1 hereof.
The term "Time of Expiry" means 4:00 p.m., _________ time, on
____________, 20__.
The term "Warrantholders" or "Registered Owners" means the persons
from time to time who are Registered Owners of the Warrants.
The term "Warrantholders' Request" means an instrument signed in
one or more counterparts by the Warrantholders entitled to purchase in the
aggregate not less than a majority of the aggregate principal amount of
Debt Securities which could be purchased pursuant to all Warrants then
Outstanding requesting the Agent to take some action or proceeding
specified therein.
The term "Warrants" means the ___% Notes/ Debentures Due 20__
Purchase Warrants issued hereunder pursuant to which Warrantholders have
the right to purchase the Debt Securities on the terms and conditions
herein set forth.
The term "Written Order of the Company [and the Co-Issuer]" and
"Written Consent of the Company [and the Co-Issuer]" mean, respectively, a
written order or consent signed in the name of the Company [and the
Co-Issuer] by any one of its officers and may consist of one or more
instruments so executed.
3
Article II
ISSUANCE OF WARRANTS
SECTION 2.1. Issuance And Terms Of Warrants. The issuance of
Warrants entitling the Registered Owners thereof to purchase up to an aggregate
of not more than [U.S. $/Specified Currency]_______ in principal amount of the
Debt Securities is hereby authorized. The Warrants are hereby designated as the
"Notes/Debentures Due Purchase Warrants." The Warrants shall be delivered by the
Company to the Agent to be authenticated by the Agent and delivered in
accordance with the Written Order of the Company [and the Co-Issuer]. The
Warrants shall be dated , 20__ and shall be issuable in fully registered form
and in denominations that permit the purchase upon exercise of [U.S. $/Specified
Currency]_______ principal amount of Debt Securities and any integral multiples
thereof.
The Warrants shall be exercisable on any Business Day during the
Exercise Period. Each Warrant in the denomination of [U.S. $/Specified Currency]
shall entitle the Registered Owner thereof to exercise such Warrant in
accordance with and pursuant to the terms thereof for the purchase of a Debt
Security in the principal amount of [U.S. $/Specified Currency] at par plus
interest accrued thereon from _______________, _______, _____ [the payment of
which will be fully and unconditionally guaranteed by the Co-Issuer] to but not
including, the Exercise Date (the "Exercise Price").
SECTION 2.2. Form of Warrants. The Warrants shall be in
substantially the form set out in this Section 2.2, with such additional
provisions, omissions, variations or substitutions as are not inconsistent with
the provisions of this Agreement. The Warrants may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer executing such Warrants
as evidenced by such officer's execution thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up
to [U.S. $/Specified Currency] ________ in Aggregate Principal Amount of ___%
Notes/Debentures Due .
This Warrant expires at 4:00 p.m. (_______ time) on [________,
_________] and thereafter will be void and of no value. Notice of the holder's
intent to exercise this Warrant must be given to ________________, as Agent not
later than 4:00 P.M. (________ time) [____________, _____].
VIACOM INC. [and VIACOM INTERNATIONAL INC. (as Co-Issuer)]
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the
Registered Owner hereof (herein sometimes called the "Warrantholder") is
entitled, upon and subject to the terms and conditions set forth herein and in
the Debt Warrant Agreement (the "Warrant Agreement") dated as of ___________,
____, ____ between Viacom Inc. (the "Company"), [Viacom International Inc. (the
"Co-Issuer")] and ______________, as Agent, (the "Agent"), to
4
purchase at par plus interest accrued thereon, if any, at any time from 9:00
A.M. (___________ time) [____________, _____] to 4:00 P.M. (________ time)
[________________, _____], inclusive (each such date being referred to as an
"Exercise Date") up to [U.S. $/Specified Currency] ___________ in aggregate
principal amount of ___% Notes/Debentures Due ____ of the Company [, the payment
of which shall be fully and unconditionally guaranteed by the Co-Issuer] (the
"Debt Securities"), by providing written notice to the Agent of the
Warrantholder's intention to exercise its right to purchase provided for herein
specifying the number of Warrants which the Warrantholder wishes to exercise,
such notice to be provided in the notice form annexed hereto as Annex II not
earlier than 9:00 A.M. (________ time)on [_________________, ____] and not later
than 4:00 P.M. (___________ time) [____________, ___], and by surrendering to
the Agent at its principal office in _____________, ___________ on any Exercise
Date, this Warrant, with the Exercise Form on which this Warrant is exercised,
the Debt Securities will be delivered as described below against payment
therefor in [U.S. Federal Reserve or other United States/Specified Currency]
funds current and immediately available to the Agent at the amount designated in
the Warrant Agreement, in each case in an amount equal to the purchase price of
the Debt Securities so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued
under the provisions of the Warrant Agreement. Reference is hereby made for
particulars of the rights of the Warrantholders and of the Company [and
Co-Issuer] in respect thereof and the terms and conditions upon which the
Warrants are issue and held, all to the sole effect as if the provisions of the
Warrant Agreement were herein set forth, to all of which the Warrantholder by
acceptance hereof assents. The Company will furnish to the Warrantholder, upon
written request and without charge, a copy of the Warrant Agreement. All
capitalized terms not otherwise defined herein, shall have the meanings ascribed
thereto in the Warrant Agreement.
The Debt Securities purchased pursuant to the exercise of this
Warrant will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date.
If Debt Securities are purchased in an aggregate principal amount
which is less than the total principal amount of the Debt Securities that can be
purchased pursuant to this Warrant, the Warrantholder hereof will be entitled to
receive without charge a new Warrant in respect of the balance of the principal
amounts of Debt Securities which the Registered Owner hereof was entitled to
purchase under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in
______________ subject to the provisions of the Warrant Agreement, one or more
Warrants may be exchanged for one or more Warrants entitling the Warrantholder
to purchase an equal aggregate principal amount of Debt Securities as may be
purchased under the Warrant or Warrants so exchanged. Nothing contained in this
Warrant, the Warrant Agreement or elsewhere shall be construed as conferring
upon the Warrantholder hereof any right or interest whatsoever as an owner of
Debt Securities or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
5
This Warrant is registered on the books of the Company and is
transferable only in accordance with the provisions of the Warrant Agreement by
surrender thereof at the principal office of the Agent duly endorsed or
accompanied by a written instrument of transfer duly executed by the Registered
Owner of this Warrant or its attorney duly authorized in writing all in
accordance with the terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and
construed in accordance with the laws of [New York].
IN WITNESS WHEREOF the Company [and the Co-Issuer] has caused this
Warrant to be duly executed as of _________________, ___.
VIACOM INC.
By
-------------------------------------------------
Name:
Title:
[VIACOM INTERNATIONAL INC.
By
------------------------------------------------
Name:
Title:]
6
Certificate of Authentication
This is one of the Warrants described in the within-mentioned Warrant Agreement
______________________, as Agent
By
--------------------------------------
Authorized Officer
7
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by
Warrant Number (the "Warrant") hereby notifies you pursuant to Section 4.1 of
the Debt Warrant Agreement dated as of , (the "Warrant Agreement") between
Viacom Inc. (the "Company") [, Viacom International Inc. (the "Co-Issuer")] and
[___________, the undersigned], of the undersigned's intention to exercise
_______ of such Warrants on ____________, ____ ) (the "Exercise Date") to
purchase [U.S. $/Specified Currency] ________________ in aggregate principal
amount of the Company's ___% Notes/Debentures Due __________________ [ the
payment of which shall be fully and unconditionally guaranteed by the Co-Issuer]
(the "Debt Securities") at par plus interest accrued, if any, from and after
[___________, _____]. The purchase price shall be a total of [U.S. $/Specified
Currency] __________ representing [U.S. $/Specified Currency] _______ in
principal and [U.S. $/Specified Currency] in accrued interest.
The Warrant with the Exercise Form duly completed shall be
delivered to the Agent at its principal office in ________________, ________.
Payment of the purchase price of the Debt Securities shall be made in [U.S.
Federal Reserve or other United States/Specified Currency funds] immediately
available at the principal office of the Agent on the Exercise Date. The
undersigned shall direct such Debt Securities be registered and delivered in the
name(s) and the amount(s) set forth opposite the undersigned's name on Annex II
to the Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By
----------------------------------------
8
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the
Warrant attached hereto hereby exercises on _____________, ____ (the "Exercise
Date") Warrants to purchase [U.S. $/Specified Currency] _______ in aggregate
principal amount of Viacom Inc.'s ___% Notes/Debentures Due ____________ [ the
payment of which shall be fully and unconditionally guaranteed by Viacom
International Inc.] (the "Debt Securities") at par plus $______ in accrued
interest on the Debt Securities from [_________________, ___], and agrees to
transfer on the Exercise Date in [U.S. $/Specified Currency] funds immediately
available to the Agent (at [account]) such purchase price of the Debt Securities
all in accordance with the terms and conditions of the Debt Warrant Agreement
dated as of ____________, ____ (the "Warrant Agreement") between Viacom Inc. [,
Viacom International Inc.] and [____________________], as Agent. The undersigned
hereby irrevocably directs that such Debt Securities be registered and delivered
in accordance with the directions set forth herein.
The undersigned acknowledges that all taxes or other governmental
charges payable upon the registration and delivery of such Debt Securities
(other than in connection with each original issue and sale of the Debt
Securities), including any transfer taxes payable if the Debt Securities are to
be registered in the name of a person or persons other than the undersigned
Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
[NAME OF WARRANTHOLDER]
By
-----------------------------------------
Please check box if Debt Securities are to be delivered at the offices of on the
Exercise Date, failing which the Debt Securities will be mailed by certified
mail return receipt requested.
Unless the foregoing box is checked, the Debt Securities shall be delivered to
the Warrantholder at its address set forth in the Register.
9
SECTION 2.3. Warrants Mutilated, Lost, Destroyed or Stolen
Warrants. If (i) any mutilated Warrant is surrendered to the Agent, or the
Company and the Agent receive evidence to their satisfaction of the destruction,
loss or theft of any Warrant and (ii) there is delivered to the Company [, the
Co-Issuer] and the Agent such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company,
[the Co-Issuer] or the Agent that such Warrant has been acquired by a bona fide
purchaser, the Company [and the Co-Issuer] shall execute and upon its request
the Agent shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, the
Company [and the Co-Issuer] may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of
any destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company [and the Co-Issuer], whether or not the
destroyed, lost or stolen Warrant shall be at any time enforceable by anyone,
and shall be entitled to all the security and benefits of this Agreement equally
and ratably with all other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Warrants.
SECTION 2.4. Warrantholder Not a Registered Owner of the Debt
Securities. The ownership of a Warrant shall not constitute the Registered Owner
thereof an owner of any of the Debt Securities nor entitle the Registered Owner
to any right or interest [or guarantee payment] in respect thereof except upon
the exercise and surrender of its Warrants and the payment of the purchase price
of the Debt Securities in accordance with and pursuant to the terms herein
provided.
SECTION 2.5. Warrants to Rank Pari Passu. All Warrants shall rank
pari passu with each other. ---------------------------
SECTION 2.6. Execution of Warrants. The Warrants shall be signed
in the name and on behalf of the Company by one of its officers [and on behalf
of the Co-Issuer by one of its officers]. The signature of the officer[s]
executing the Warrants may be manual or facsimile. In case any officer of the
Company [or of the Co-Issuer] who shall have signed any of the Warrants
(manually or in facsimile) shall cease to be such officer before the Warrants so
signed shall have been authenticated and delivered by the Agent, such Warrants
nevertheless may be authenticated and delivered as though the Person who signed
such Warrants had not ceased to be such officer of the Company [or of the
Co-Issuer, as the case may be]. Also, any Warrant may be signed on behalf of the
Company [or the Co-Issuer] by such Persons as on the actual date of execution of
such Warrant shall be the proper officers of the Company [or the Co-
10
Issuer, as the case may be], although at the date of the execution of this
Agreement any such Person was not such officer.
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. Purchase of Warrants by the Company. The Company may
purchase in the market, by private contracts or otherwise all or any portion of
the Warrants on such terms as the Company may determine.
Article III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
SECTION 3.1. Register. The Agent, as agent of the Company [and the
Co-Issuer], shall maintain, at its principal office in ____________, ____, the
Register in which, subject to such reasonable regulations as it and the Company
[and the Co-Issuer] may prescribe, it shall provide for the registration of the
Warrants and the transfer of Warrants as in this Agreement provided. The
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Registered Owners of
the Warrants shall present directly to the Agent all requests for (a)
registration of transfer of Warrants, (b) exchange of Warrants for new Warrants
in authorized denominations and (c) replacement of Warrants in the case of
mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company
with a list of names and addresses of the Registered Owners showing the number
of such Warrants held by each Registered Owner.
SECTION 3.2. Exchange of Warrants. Warrants entitling the
Registered Owner to purchase any specified principal amount of Debt Securities
may, upon compliance with the reasonable requirements of the Agent, be exchanged
for Warrants entitling the Registered Owner thereof to purchase an equal
aggregate principal amount of Debt Securities.
Warrants may be exchanged only at the principal office of the
Agent in _______________, ___ or at any other place that is designated by the
Company. Any Warrants tendered for exchange shall be surrendered to the Agent
and canceled. The Company [and the Co-Issuer] shall execute all Warrants
necessary to carry out exchanges as aforesaid and such Warrants shall be
authenticated by the Agent.
SECTION 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company [or the Co-Issuer], charge a reasonable sum for each new Warrant
issued; and payment of such charges and reimbursement of the Agent or the
Company [and the Co-Issuer] for any taxes or governmental or other charges
required to be paid shall be made by the party requesting such exchange, as a
condition precedent thereto.
11
SECTION 3.4. Registration of Transfer; Restrictions on Transfers.
No transfer of a Warrant shall be valid unless made at the principal offices of
the Agent in the ____________, __________ or at any other place that is
designated by the Company as an office for registration of transfer by the
Registered Owner or such Registered Owner's executors, administrators or other
legal representatives or attorney duly appointed by an instrument in writing in
form and execution satisfactory to the Agent and upon compliance with such
reasonable requirements as the Agent and the Company [and the Co-Issuer] may
prescribe. Any Warrants tendered for registration of transfer shall be
surrendered to the Agent.
SECTION 3.5. Notice to Warrantholders. Unless herein otherwise
expressly provided, any notice to be given hereunder to Warrantholders shall be
deemed to be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
Article IV
EXERCISE OF WARRANTS
SECTION 4.1. Method of Exercise of Warrants. The Registered Owner
of any Warrant may exercise the right thereby to purchase Debt Securities by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company [and the Co-Issuer]:
(a) at least 3 Business Days prior to the exercise of its
Warrants, a completed and executed Notice of Intent to Exercise in the form
thereof set forth in Annex I to each Warrant (a "Notice of Intent to
Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise
Form in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
The items described in the foregoing clauses (a) and (b) shall be
deemed received when an actual copy or a facsimile thereof is received by the
Agent. Each Warrant shall be deemed to be surrendered only upon personal
delivery thereof to or, if sent by mail or other means of transmission, upon
receipt thereof by, the Agent at the office specified in this Section 4.1. Each
Warrant shall be deemed exercised as of the first Business Day on which all of
the foregoing conditions are satisfied with respect to such Warrant. The first
day on which the Warrants may be exercised is ________________, ____________,
___. The Company [and the Co-Issuer] acknowledge[s] that the Registered Owners
of the Warrants are not required under any circumstances to take any other
actions in order to exercise their Warrants.
12
SECTION 4.2. Effect of Exercise of Warrants. Upon surrender and
payment of the Exercise Price by the Registered Owner of any Warrant in
accordance with Section 4.1, the Debt Securities] so purchased shall be deemed
to have been issued and the person or persons to whom such Debt Securities] are
to be issued shall be deemed to have become the Registered Owner or owners of
such Debt Securities on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company [and
the Co-Issuer] shall forthwith cause to be delivered to the person to whom the
Debt Securities] so purchased are to be issued at the address specified in such
form or, if so specified in such purchase form, cause to be delivered to such
person at the office where such Warrant was surrendered, a Debt Security or Debt
Securities] in the form or forms and in the denominations requested and for the
appropriate principal amount of Debt Securities] not exceeding the principal
amount which the Warrantholder is entitled to purchase pursuant to the Warrant
surrendered.
SECTION 4.3. Partial Exercise of Warrants. Subject to the issuance
of Debt Securities] in authorized denominations only, the Registered Owner of
any Warrant may purchase Debt Securities] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a principal amount of Debt Securities]
less than the principal amount which can be purchased pursuant to a Warrant, the
Registered Owner thereof upon exercise thereof prior to the Time of Expiry
shall, in addition, be entitled to receive forthwith a new Warrant in respect of
the balance of the principal amount of Debt Securities] which such Registered
Owner was entitled to purchase pursuant to the surrendered Warrant and which
were not then exercised. The Company [and the Co-Issuer] shall not be
responsible for any taxes which may be payable in connection with the issuance
of such new Warrant.
SECTION 4.4. Expiration of Warrants. After the Time of Expiry, all
rights under any Warrant in respect of which the right of purchase herein and
therein provided for shall not theretofore have been exercised pursuant to
Section 4.1 shall cease and terminate and such Warrant shall become void and of
no effect and all rights of the Registered Owner thereof under this Warrant
Agreement shall cease and terminate as of such termination; provided that such
Registered Owner's rights under this Warrant Agreement with respect to actions
occurring prior to such termination shall remain in full force. After the Time
of Expiry, each Registered Owner of any Warrants shall return any unexercised
Warrants to the Agent for cancelation in accordance with Section 4.5 of this
Agreement.
SECTION 4.5. Cancellation of Surrendered Warrants. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of Debt Securities] which could have been purchased pursuant to
each.
SECTION 4.6. Accounting and Recording. The Agent shall forthwith
account and remit to the Company with respect to Warrants exercised and
immediately forward to the Company (or into an account or accounts of the
Company with the bank or trust company designated by the Company for that
purpose) all monies received by the Agent on the purchase
13
of Debt Securities] through the exercise of Warrants. All such monies, and any
Debt Securities] or other instruments, from time to time received by the Agent
shall be received in trust for, and shall be segregated and kept apart by the
Agent in trust for, the Company.
The Agent shall record the particulars of the Warrants exercised
which shall include the names and addresses of the persons who become Registered
Owners of Debt Securities] on exercise, the Exercise Date, the Exercise Price
and the number of Debt Securities] reserved for that purpose by the Company. The
Agent shall provide such particulars in writing to the Company.
Article V
COVENANTS
SECTION 5.1. Issuance of Debt Securities. The Company covenants
that so long as any Warrants remain Outstanding it will cause the Debt
Securities from time to time paid for pursuant to the Warrants in the manner
herein provided to be duly issued and delivered in accordance with the Warrants
and the terms hereof.
SECTION 5.2. Corporate Existence of the Company; Consolidation,
Merger, Sale or Transfer. Each of the Company [and the Co-Issuer] covenants that
so long as any of the Warrants are Outstanding, it will maintain its existence,
will not dissolve, sell or otherwise dispose of all or substantially all of its
assets and will not consolidate with or merge into another entity or permit one
or more other entities to consolidate with or merge into it; provided that the
Company may, without violating the covenants in this Section 5.2 contained,
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it, or sell or otherwise transfer to
another entity all or substantially all of its assets as an entirety and
thereafter dissolve, if: (i) immediately after such consolidation, merger, sale
or conveyance no Event of Default or Default shall have occurred and be
continuing; (ii) the surviving Person in such consolidation or merger (if other
than the Company [or the Co-Issuer], as the case may be) or person to whom such
property and assets are sold or conveyed (if other than the Company [or the
Co-Issuer], as the case may be) is a corporation organized under the laws of the
United States of America or any state thereof, and such Person (if other than
the Company [or the Co-Issuer], as the case may be) through an amendment to this
Agreement assumes all of the obligations of the Warrants and the performance and
observance of all the covenants and conditions of this Agreement with respect to
the Company [or the Co-Issuer], as the case may be; (iii) the Company [or the
Co-Issuer], as the case may be, shall have delivered to the Trustee under the
Indenture such certificates and opinions as required by the Indenture and all
conditions precedent provided for in the Indenture relating to such
consolidation, merger, sale or conveyance have been complied with. The Company
[and/or the Co-Issuer] may consolidate or merge with or into, or sell or convey
all or substantially all of its property and assets to any Subsidiary. For
purposes of this Section, "sell or convey all or substantially all of its
property and assets" shall mean property and assets contributing in the
aggregate at least 80% of the Company's total consolidated revenues as reported
in the Company's last available periodic financial report (quarterly or annual,
as the case may be) filed with the Securities and Exchange Commission.
14
Upon any consolidation by the Company [or the Co-Issuer] with or
merger by the Company [or the Co-Issuer] into any other corporation or any sale
or conveyance of all or substantially all of the property and assets of the
Company [or the Co-Issuer] to any Person in accordance with this Section 5.2,
the successor Person formed by such consolidation or into which the Company [or
the Co-Issuer] 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 Co-Issuer], as the case may be under this Agreement with the
same effect as if such successor Person had been named as the Company [or the
Co-Issuer], as the case may be, herein, and in the event of any such sale or
conveyance, the Company [or the Co-Issuer], as the case may be (which term shall
for this purpose mean the Person named as the "Company" [or the "Co-Issuer"] in
the first paragraph of this Agreement or any successor Person which shall
theretofore become such in the manner described in this Section 5.2), shall be
discharged of all obligations and covenants under this Agreement and may be
dissolved or liquidated.
SECTION 5.3. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange of Warrants. So long as any of the Warrants shall remain
Outstanding, the Company covenants that it will maintain an office or agency in,
where the Warrants may be presented for registration, exchange and transfer as
in this Agreement provided, and where notices and demands to or upon the Company
in respect of the Warrants or of this Agreement may be served, and where the
Warrants may be presented for exchange for Debt Securities as provided herein.
SECTION 5.4. Appointment to Fill a Vacancy in the Office of Agent.
The Company, whenever necessary to void or fill a vacancy in the office of
Agent, covenants that it will appoint, in the manner provided in Section 9.4
hereof, an Agent, so that there shall at all times be a Agent with respect to
the Outstanding Warrants.
[SECTION 5.5 Co-Issuance of Debt Securities. The Co-Issuer
covenants that so long as any Warrants remain Outstanding it will cause the Debt
Securities from time to time guaranteed pursuant to the Warrants in the manner
herein provided to be fully and unconditionally guaranteed in accordance with
the Warrants and the terms hereof.]
Article VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default. The term "Event of Default"
whenever used herein with respect to any ----------------- Warrant shall mean
any one of the following events:
(a) Failure by the Company [or the Co-Issuer] to deliver the Debt
Securities or the Guarantees, as the case may be, in exchange for the
Warrants in accordance with the provisions of this Agreement or
(b) failure on the part of the Company [or the Co-Issuer] to
observe or perform in any material respect any of the covenants or
agreements on its part in the Warrants or in this Agreement specifically
contained for the benefit of the Warrantholders, for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Agent, or to the Company and the Agent by the
15
Registered Owners of not less than 25% in principal amount of the Warrants
at the time Outstanding under this Agreement a written notice specifying
such failure and stating that such is a "Notice of Default" hereunder.
SECTION 6.2. Suits by Warrantholders. All or any of the rights
conferred upon the Registered Owner of any Warrant by the terms of such Warrant
and/or this Agreement may be enforced by the Registered Owner of such Warrants
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Agent to proceed in its own name to enforce each and
all of the provisions herein contained for the benefit of the Registered Owners
of the Warrants from time to time Outstanding.
SECTION 6.3. Remedies Not Waived; Enforcement Expense. No delay or
failure on the part of the Registered Owners of Warrants or the Agent to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such Registered Owner's or Agent's, as the case may be, rights, powers
and remedies. The Company agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by a Registered Owner in
enforcing or attempting to enforce its rights thereunder and hereunder following
the occurrence and during the continuance of any Event of Default hereunder,
whether the same shall be enforced by suit or otherwise.
SECTION 6.4. Incorporators, Stockholders, Officers and Directors
of Company and Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of this Agreement, or of any Warrant, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company [or of the Co-Issuer], either directly or though the
Company [or of the Co-Issuer], whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Agreement and the Warrants issued hereunder
are solely corporate obligations, and that no personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company [or of the Co-Issuer], because of
the creation of the indebtedness [or the guarantees] hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied thereform are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
Article VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
SECTION 7.1. Amendments Without Consent of Registered Owners of
Warrants. This Agreement and the terms and conditions of the Warrants may be
amended by the
16
Company and the Agent, without the consent of any Registered Owner of Warrants
for any of the following purposes:
(a) to add to the covenants of the Company [or of the Co-Issuer]
for the benefit of the Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the Company [or
the Co-Issuer],
(c) to cure any ambiguity or correcting or supplementing any
provision contained herein or in the Warrants which may be defective or
inconsistent with any other provisions contained herein or in the Warrants,
(d) if deemed appropriate by the Company [or the Co-Issuer, as the
case may be,] or required by law, to evidence the permitted succession of
another corporation to the Company [or the Co-Issuer, as the case may be,]
and the assumption by such successor of the covenants and obligations of
the Company [or the Co-Issuer, as the case may be,] herein and in the
Warrants or
(e) to make such other provisions in regard to matters or
questions arising under this Agreement or the Warrants which shall not
adversely affect the interests of the Registered Owners of the Warrants in
any material respect.
SECTION 7.2. Amendments with Consent of Registered Owners of
Warrants. This Agreement, the terms and conditions of the Warrants and the
covenants contained in either may also be modified or amended by the Company [,
the Co-Issuer] and the Agent and past defaults thereunder or future compliance
therewith by the Company [or by the Co-Issuer] may be waived either with the
written consent of the Registered Owners of not less than a majority in
aggregate principal amount of the Debt Securities] at the time outstanding, or a
resolution by the Registered Owners of not less than 75% in aggregate principal
amount of the Outstanding Warrants present or represented at the meeting;
provided that no such modification, amendment or waiver may, without the consent
or affirmative vote of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver Debt Securities] in
exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise
Dates or the Expiry Date with respect to any Warrant, or change the coin or
currency in which any Warrant is exercisable for Debt Securities or impair
the right to institute suit for the enforcement of any rights of any
Registered Owner of a Warrant or
(b) Reduce the percentage in principal amount of the Outstanding
Warrants, the consent of which Registered Owners is required for any
modification or amendment to this Agreement or to the terms and conditions
of or covenants contained in this Agreement or in the Warrants or for any
waiver of compliance therewith or
17
(c) modify any of the provisions of this Section 7.2 except to
provide that certain other provisions of this Agreement or the terms and
conditions of the Warrants cannot be modified, amended or waived without
the consent of the Registered Owner of each Outstanding Warrant affected
thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
SECTION 7.3. Binding Nature of Amendments; Notice. Any
modifications, amendments or waivers to this Agreement or to the terms and
conditions of the Warrants in accordance with the provisions hereof will be
conclusive and binding on all Registered Owners of Warrants, whether or not they
have given such consent, whether or not notation of such modifications,
amendments or waivers is made upon the Warrants, and on all future Registered
Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or
the implementation of any modification or amendment of the terms and conditions
of the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
Article VIII
[Intentionally omitted]
Article IX
CONCERNING THE AGENT
SECTION 9.1. Appointment of Agent. The Company [and the Co-Issuer]
hereby appoint[s] ___________, at present having its principal office in
[__________ at _____________, ________, __________] as the Agent in respect of
the Warrants, upon the terms and subject to the conditions set forth in this
Agreement.
SECTION 9.2. Acceptance of Appointment By Agent; Limitations of
Duties of Agent. The Agent accepts its obligations set forth herein and in the
Warrants upon the terms and conditions hereof and thereof, including the
following, to all of which the Company agrees and to all of which the rights
hereunder of the Registered Owners from time to time of the Warrants shall be
subject:
(a) The Agent shall be entitled to the compensation agreed upon
with the Company [and the Co-Issuer] for all services rendered by it, and
the Company [and the Co-Issuer] agree[s] promptly to pay such compensation
and to reimburse the Agent for its reasonable out-of-pocket expenses
(including, without limitation, the reasonable compensation of its counsel)
incurred by it in connection with the services rendered by it
18
hereunder. The Company [and the Co-Issuer] also agree[s] to indemnify the
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with its acting as such Agent hereunder, including the costs and
expenses of defending against any claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company [and the
Co-Issuer] and does not assume any obligations or relationship of agency or
trust for or with any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may also
be counsel to the Company [or the Co-Issuer]), and, in the absence of bad
faith, the written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered by it in the good
faith reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company [or
the Co-Issuer] reasonably believed by the Agent to be genuine and to have
been signed by the proper persons.
(e) The Agent and its officers, directors and employees may become
the owner of, or acquire any interest in, any Warrants, with the same
rights that it or they would have if it were not the Agent hereunder, may
engage or be interested in any financial or other transaction with the
Company [or the Co-Issuer] and may act on, or as depository, trustee or
agent for, any committee or body of Registered Owners of the Warrants or
holders of other obligations of the Company [or the Co-Issuer] as freely as
if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in
the Agent's certificates of authentication) shall be taken as the
statements of the Company [or of the Co-Issuer, as applicable], and the
Agent assumes no responsibility for their correctness. The Agent makes no
representation as to the validity or sufficiency of this Agreement or the
Warrants, provided that the Agent shall not be relieved of its duty to
authenticate Warrants as authorized by this Agreement. The Agent shall not
be accountable for the use or application by the Company [and the
Co-Issuer] of the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only
such duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company
[and the Co-Issuer].
19
SECTION 9.3. Agent Required. The Company [and the Co-Issuer]
agree[s] that, until all Warrants (i) shall have been delivered to the Agent for
cancellation or (ii) have become null and void because of the passage of the
Expiry Date, there shall at all times be a Agent hereunder which shall be a
corporation doing business in the United States and which alone or with its
affiliates has a combined capital and surplus of at least $[___,000,000].
SECTION 9.4. Resignation and Removal of Agent; Appointment of
Successor. The Agent may at any time resign by giving written notice (in
accordance with Section 10.1 hereof) to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be less than [90] days
after the receipt of such notice by the Company unless the Company [and the
Co-Issuer] agree[s] to accept less notice. Upon receipt of such notice of
resignation, the Company [and the Co-Issuer] shall promptly act to appoint a
successor Agent. The Agent may be removed at any time by the Company [and the
Co-Issuer] by delivering written notice thereof specifying such removal and the
date when it is intended to become effective. Any resignation or removal of the
Agent shall take effect upon the date of the appointment by the Company [and the
Co-Issuer] as hereinafter provided of a successor and the acceptance of such
appointment by such successor.
In case at any time the Agent shall resign, or shall be removed,
or shall become incapable of acting or shall be adjudged as bankrupt or
insolvent, or if a receiver of its or of its property shall be appointed, or if
any public officer shall take charge or control of its or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor agent, eligible as aforesaid, shall be appointed by the Company [and
the Co-Issuer].
Upon the appointment as aforesaid of a successor agent and
acceptance by it of such appointment, the Agent so superseded shall cease to be
the Agent hereunder. If no successor Agent shall have been so appointed by the
Company [and the Co-Issuer] and shall have accepted appointment as hereinafter
provided, then the Registered Owners of a majority in aggregate principal amount
of the Outstanding Warrants, on such Holders' behalf and on behalf of all others
similarly situated may petition any court of competent jurisdiction for the
appointment of a successor Agent.
Any successor Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appointment of a successor Agent.
20
SECTION 9.5. Merger, Conversion, Consolidation or Succession to
Business of Agent. Any corporation into which the Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Agent shall be a
party, or any corporation succeeding to all or substantially all the assets and
business of the Agent, shall be the successor to the Agent hereunder, provided
such corporation shall be otherwise eligible under this Article IX, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not
delivered, by the Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Agent may adopt such authentication and
deliver the Warrants so authenticated with the same effect as if such successor
Agent had itself authenticated such Warrants.
Article X
MISCELLANEOUS
SECTION 10.1. Notices. All notices or demands hereunder upon the
Company or the Agent may be ------- electronically communicated or hand
delivered or sent by overnight courier, addressed to any party hereto as
provided in this Section 10.1.
All communications intended for the Company [or the Co-Issuer]
shall be sent to:
Viacom Inc.
[or Viacom International Inc.]
1515 Broadway
New York, NY 10036
Attention:
Fax Number: (212) ___________
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will
be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day
it is delivered unless (i) that day is not a day on which commercial banks
are open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
21
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
SECTION 10.2. Day Not a Business Day. If any date on which a
payment is to be made, notice given or other action taken hereunder is not a
Business Day, then such payments, notice or other action shall be made, given or
taken on the next succeeding business day in such place, and in the case of any
payment, no interest shall accrue for the delay.
SECTION 10.3. Currency. All amounts herein are expressed in
[United States Dollars/Specified Currency]. --------
SECTION 10.4. Governing Law. This Agreement and the Warrants shall
be construed in accordance with the ------------- laws of New York.
SECTION 10.5. Limitation of Rights to Parties and Registered
Owners of Warrants. Nothing in this Agreement or in the Warrants expressed or
implied is intended or shall be construed to give to any Person other than the
Company, [the Co-Issuer,] the Agent and the Registered Owners of the Warrants
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any covenant, condition or provision herein or in the Warrants. All
such covenants, conditions and provisions are and shall be held to be for the
sole and exclusive benefit of the Company, [the Co-Issuer,] the Agent and the
Registered Owners of the Warrants.
SECTION 10.6. Separability of Invalid Provisions. In case any one
or more of the provisions contained in this Agreement or in the Warrants shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein.
SECTION 10.7. No Waiver of Rights. A failure or delay in
exercising any right, power or privilege in respect of this Warrant Agreement
will not be presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any subsequent or
further exercise of that right, power or privilege or the exercise of any other
right, power or privilege.
SECTION 10.8. Execution in Several Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall for all
purposes be deemed to be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 10.9. Article and Section Headings. The headings or titles
of the several Articles and Sections hereof and any table of contents appended
to copies hereof shall be
22
solely for convenience of reference and shall not affect the meaning,
construction or effect of this Agreement.
SECTION 10.10. Successor and Assigns. All the covenants and
agreements in this Agreement contained by or on behalf of the Company [, the
Co-Issuer] or the Agent shall bind their respective successors and assigns,
whether so expressed or not.
23
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
VIACOM INC.
By
---------------------------------
Name:
Title:
[VIACOM INTERNATIONAL INC.
By
---------------------------------
Name:
Title:]
AGENT NAME, as Agent
By
---------------------------------
Name:
Title:
24
EXHIBIT 4.9
FORM OF
SIXTH SUPPLEMENTAL INDENTURE
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
CITIBANK, N.A.,
Trustee
-------------------------------------
SIXTH SUPPLEMENTAL INDENTURE
Dated as of May 17, 2001
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
CITIBANK, N.A.,
Trustee
-------------------------------------
Senior Debt Securities
SIXTH SUPPLEMENTAL INDENTURE, dated as of May 17, 2001, among
VIACOM INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL INC.,
a Delaware corporation (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, trustee (the "Trustee") to the Indenture,
dated as of May 15, 1995, among the Company, the Guarantor and the trustee party
thereto, 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 and as further
supplemented by the Fifth Supplemental Indenture, dated as of January 17, 2001,
among the Company, the Guarantor and the Trustee (as so amended, the
"Indenture").
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 Holders of Securities to change any provisions of
the Indenture with respect to a series of Securities, where there are no
Securities Outstanding which are entitled to the benefit of such provision;
WHEREAS, Section 901(8) of the Indenture permits supplements
thereto without the consent of Holders of Securities to make provisions with
respect to matters or questions arising under the Indenture, provided that the
interests of the Holders of Securities of any series or any related coupons are
not adversely affected thereby in any material respect;
WHEREAS, as contemplated by Section 301 of the Indenture, the
Company intends to issue and the Guarantor intends to guarantee from time to
time two new series of Securities, consisting of (i) 6.40% Senior Notes due 2006
(the "2006 Senior Notes"), which upon their exchange for 6.40% Senior Notes due
2006 which have been registered under the Securities Act of 1933, will be a
further issuance of the registered 6.40% Senior Notes due 2006 which were issued
on March 19, 2001 and (ii) 6.625% Senior Notes due 2011 (the "2011 Senior
Notes") under the Indenture; and
WHEREAS, as contemplated by Section 301 of the Indenture, the
Company wishes to add to the covenants of the Company for the sole benefit of
the Holders of the 2006 Senior Notes and the 2011 Senior Notes and to make
certain changes to other provisions of the Indenture.
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH:
For consideration, the adequacy and sufficiency of which are
hereby acknowledged by the parties hereto, each party agrees as follows, for the
benefit of the other party and for the equal and proportionate benefit of all
Holders of the 2006 Senior Notes and the 2011 Senior Notes, as follows:
SECTION 1. For the purpose of this Sixth Supplemental Indenture, all terms used
herein, unless otherwise defined, shall have the meaning assigned to them in the
Indenture, as amended hereby.
SECTION 2. The Company shall issue from time to time, and the Guarantor shall
guarantee from time to time, (a) 2006 Senior Notes in an aggregate principal
amount of $400,000,000 and (b) 2011 Senior Notes in an aggregate principal
amount of $1,000,000,000. The forms of the 2006 Senior Notes and 2011 Senior
Notes are set forth, respectively, in Exhibit A and Exhibit B hereto. Upon their
exchange for 6.40% Senior Notes due 2006 which have been registered under the
Securities Act of 1933, the 2006 Senior Notes will be a further issuance of the
registered 6.40% Senior Notes due 2006 which were issued in the aggregate
principal amount of $396,925,000 on March 19, 2001. The 2006 Senior Notes and
2011 Senior Notes shall include the legends set forth on the face of Exhibit A
and Exhibit B hereto, respectively, (substantially in the form so set forth), so
long as such Securities are Restricted Securities.
SECTION 3. The 2006 Senior Notes and 2011 Senior Notes offered and sold in
reliance on Rule 144A shall be issued initially in the form of one or more
permanent global 2006 Senior Notes and permanent global 2011 Senior Notes in
registered form, substantially in the form set forth in Exhibit A and Exhibit B
hereto, respectively, (the "U.S. Global 2006 Senior Notes" and the "U.S. Global
2011 Senior Notes" and, collectively, the "U.S. Global Securities"), registered
in the name of the nominee of the Depositary, deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by
the Trustee as provided in Section 303 of the Indenture. The aggregate principal
amount of the U.S. Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
The 2006 Senior Notes and 2011 Senior Notes offered and sold in
offshore transactions in reliance on Regulation S shall be issued initially in
the form of one or more permanent global 2006 Senior Notes and permanent global
2011 Senior Notes, as the case may be, in registered form, substantially in the
forms set forth in Exhibit A and Exhibit B hereto, respectively, (the "Offshore
Global 2006 Senior Notes" and the "Offshore Global 2011 Senior Notes" and,
collectively, the "Offshore Global Securities"), registered in the name of the
nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
provided in Section 303 of the Indenture. The aggregate principal amount of the
Offshore Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
2
The U.S. Global Securities and the Offshore Global Securities are
sometimes referred to herein as the "Global Securities."
SECTION 4. For the benefit of the Holders of all Securities, Section 101 of the
Indenture shall be amended by deleting the definition of "Euro-clear" and
replacing such definition with the following definition:
"Euro-clear" means Euroclear Bank S.A./N.V., a bank incorporated
under the laws the Kingdom of Belgium, as the operator of the Euroclear
System, or its successors.
SECTION 5. For the sole benefit of the Holders of the 2006 Senior Notes and 2011
Senior Notes, Section 101 of the Indenture shall be amended by deleting the
definitions of "Authorized Newspaper," "Corporate Trust Office," "Principal
Property," "Sale and Leaseback Transaction" and "United States Person" and
replacing such definitions with the following definitions:
"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;
provided, however, that so long as a series of Securities is listed on the
Luxembourg Stock Exchange, Authorized Newspaper solely with respect to such
series of Securities shall mean a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxembourg Wort) or,
if publication in such newspaper is not practicable, a leading English
language daily newspaper with general circulation in Europe, that is
published each Business Day in morning editions, whether or not published
in Saturday, Sunday or holiday editions. 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.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this
Indenture, located at Citibank, N.A., 111 Wall Street, 14th Floor, New
York, New York, 10005; Attention: Citibank Agency and Trust Services.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company
or any Restricted Subsidiary and located in the United States, the
aggregate book value of which on the date of determination exceeds $1.0
billion, other than any such real property and related fixtures or
improvements which, as determined in good faith by the Board of Directors
of the Company, is not of material importance to the total business
conducted by the Company and its Subsidiaries, taken as a whole.
3
"Sale and Leaseback Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property which has been or is to be sold or
transferred by the Company or such Person; provided, however, that "Sale
and Leaseback Transaction" shall not include such arrangements that were
existing on January 17, 2001, in the case of the 2006 Senior Notes, or May
17, 2001, in the case of the 2011 Senior Notes, or at the time any Person
owning a Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or consolidation).
"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 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.
SECTION 6. For the sole benefit of the Holders of the 2006 Senior Notes, Section
101 of the Indenture is hereby amended by adding the following definitions, each
in appropriate alphabetical order:
"Agent" means any Transfer Agent, Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Closing Date" means May 17, 2001.
"Depositary" means, as applicable, either the U.S. Depositary or
the Common Depositary.
"Exchange Notes" means any securities of the Company containing
terms identical to the 2006 Senior Notes (except that such Exchange Notes
shall be registered under the Securities Act and shall not include the
restrictions on transfer or any increase in the interest rate) that are
issued and exchanged for the 2006 Senior Notes pursuant to the Registration
Rights Agreement and the Indenture.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"non-United States Person" means a Person who is not a United
States Person.
"Participant" means a Person who has an account with a
Depositary.
4
"Registration Rights Agreement" means the Registration Rights
Agreement, dated May 17, 2001, between the Company, the Guarantor, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith Barney, Inc.
and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Non-U.S. Person" means a person who is not a "U.S.
Person" as defined in Regulation S.
"Regulation S U.S. Person" has the meaning assigned thereto in
Regulation S.
"Restricted Security" means any 2006 Senior Note that has not
been sold in connection with an effective Registration Statement.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
SECTION 7. For the sole benefit of the Holders of the 2011 Senior Notes, Section
101 of the Indenture is hereby amended by adding the following definitions, each
in appropriate alphabetical order:
"Agent" means any Transfer Agent, Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Closing Date" means May 17, 2001.
"Depositary" means, as applicable, either the U.S. Depositary or
the Common Depositary.
"Exchange Notes" means any securities of the Company containing
terms identical to the 2011 Senior Notes (except that such Exchange Notes
shall be registered under the Securities Act and shall not include the
restrictions on transfer or any increase in the interest rate) that are
issued and exchanged for the 2011 Senior Notes pursuant to the Registration
Rights Agreement and the Indenture.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Make-Whole Amount" means, with respect to a series of
Securities, the excess, if any, of (i) the aggregate present value as of
the Redemption Date of principal being redeemed and the amount of interest
(exclusive of interest accrued to the Redemption Date) that would
5
have been payable if redemption had not been made, determined by
discounting, on a semiannual basis, the remaining principal and interest
payment for such series of Securities at the Reinvestment Rate (determined
on the third Business Day preceding the date notice of redemption shall
have been given) from the dates on which the principal and interest would
have been payable with respect to such series of Securities if the
redemption had not been made, to the applicable Redemption Date, over (ii)
the aggregate principal amount of the applicable series of Securities being
redeemed.
"non-United States Person" means a Person who is not a United
States Person.
"Participant" means a Person who has an account with a
Depositary.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated May 17, 2001, between the Company, the Guarantor, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith Barney, Inc.
and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Non-U.S. Person" means a person who is not a "U.S.
Person" as defined in Regulation S.
"Regulation S U.S. Person" has the meaning assigned thereto in
Regulation S.
"Reinvestment Rate" means 0.25% for the series of Securities
designated as 6.625% Senior Notes due 2011 plus the arithmetic mean of the
yields under the heading "Week Ending" published in the most recent Federal
Reserve Statistical Release H.15 (or any comparable successor publication)
under the caption "Treasury Constant Maturities" for the maturity (rounded
to the nearest month) corresponding to the remaining life to maturity, as
of the Maturity of the principal of the series of Securities being redeemed
or paid. If no maturity exactly corresponds to the Maturity of such series
of Securities, yields for the two published maturities most closely
corresponding to the Maturity of such series of Securities would be so
calculated and the Reinvestment Rate would be interpolated or extrapolated
on a straight-line basis, rounding to the nearest month. The most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount will be used for purposes of calculating the Reinvestment
Rate.
"Restricted Security" means any 2011 Senior Note that has not
been sold in connection with an effective Registration Statement.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
6
SECTION 8. For the sole benefit of the Holders of the 2006 Senior Notes and 2011
Senior Notes, Section 106 shall be amended by deleting clause (1) thereof and
replacing such clause (1) in its entirety with the following:
(1) such notice shall be sufficiently given to Holders of Registered
Securities (unless otherwise herein expressly provided) (a) 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 (b) for so long as a
series of Registered Securities is listed on the Luxembourg Stock Exchange
and it is required by rules of the Luxembourg Stock Exchange, publication
shall have been made of such notice with regard to such series of
Securities in the English language in an Authorized Newspaper.
SECTION 9. For the sole benefit of the holders of the 2006 Senior Notes and the
2011 Senior Notes, Sections 305, 305A and 305B of the Indenture are hereby
deleted in their entirety and replaced by the following Sections 305, 305A,
305B, 305C, 305D and 305E (the "New Provisions"):
SECTION 305. Registrar and Paying Agent. The Company shall maintain an
office or agency in the City of New York where Securities may be presented
for transfer or for exchange (the "Transfer Agent") and for the
registration of such transfer or exchange (the "Registrar", which term
shall include acting in the capacity of Transfer Agent), an office or
agency in the City of New York where Securities may be presented for
payment (the "Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served, which shall be in the Borough of Manhattan, The
City of New York and, in the event any series of Securities is listed on
the Luxembourg Stock Exchange, in Luxembourg with respect to such series.
The Company shall cause the Registrar to keep a register of the Securities
and of their transfer and exchange (the "Security Register"). The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Company may have
one or more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Company
fails to maintain a Registrar, Paying Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent
and/or agent for service of notices and demands. The Company may remove any
Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an
appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as such Agent until the appointment of a successor
Agent in
7
accordance with clause (i) of this proviso. The Company, any Subsidiary of
the Company, or any Affiliate of any of them may act as Paying Agent,
Registrar or co-Registrar, and/or agent for service of notice and demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
Authenticating Agent and agent for service of notice and demands and
Kredietbank S.A. Luxembourgeoise as Transfer Agent, Paying Agent and agent
for service of notice and demands in Luxembourg, at Kredietbank S.A.
Luxembourgeoise, 43, Boulevard Royal, L-2955 Luxembourg; Attention:
Corporate Trust Department. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee as of each Regular Record Date and at such other times as the
Trustee may reasonably request the names and addresses of Holders as they
appear in the Security Register, including the aggregate principal amount
of Securities held by each Holder.
SECTION 305A. Transfer and Exchange. A Holder may transfer a Security
only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee
shall succeed to the rights of a Holder only upon, final acceptance and
registration of the transfer by the Registrar in the Security Register.
Prior to the registration of any transfer by a Holder as provided herein,
the Company, the Trustee, and any agent of the Company shall treat the
person in whose name the Security is registered as the owner thereof for
all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary. Furthermore, any Holder of a Global Security shall, by acceptance
of such Global Security, agree that transfers of beneficial interests in
such Global Securities may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent) and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book-entry. When Securities are presented to the Registrar
or a co-Registrar with a request to register the transfer or to exchange
them for an equal principal amount of Securities of other authorized
denominations; provided that (i) the Registrar shall register the transfer
or make the exchange as requested if its requirements for such transactions
are met (including that such Securities are duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the Trustee and
Registrar duly executed by the Holder thereof or by an attorney who is
authorized in writing to act on behalf of the Holder) and (ii) the
requirements of Section 305D herein are met. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall
be made for any registration of transfer or exchange or redemption of the
Securities, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith. Securities presented to Kredietbank S.A. Luxembourgeoise with a
request to register the transfer or exchange of such Securities will be
forwarded, along with such request, by Kredietbank S.A. Luxembourgeoise to
the Registrar.
8
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Article Eleven and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
SECTION 305B. Legend on Restricted Securities. Unless and until a 2006
Senior Note or a 2011 Senior Note is exchanged for an Exchange Note or sold
in connection with an effective Shelf Registration Statement pursuant to
the Registration Rights Agreement, (i) the U.S. Global 2006 Senior Notes
and U.S. Global 2011 Senior Notes shall bear the legends set forth on the
face of Exhibit A and Exhibit B, respectively, and (ii) the Offshore 2006
Senior Notes and Offshore 2011 Senior Notes shall bear the legends set
forth on the face of Exhibit A and Exhibit B, respectively, until (A) at
least the 41st day after the Closing Date and (B) receipt by the Company
and the Trustee of a certificate substantially in the form of Appendix I
hereto.
Except as provided in Section 305D, the Trustee shall not issue any
unlegended 2006 Senior Notes or 2011 Senior Notes until it has received an
Officers' Certificate from the Company directing it to do so.
SECTION 305C. Book-Entry Provisions for U.S. Global Securities and
Offshore Global Securities. (a) Each U.S. Global Security and Offshore
Global Security initially shall (i) be registered in the name of the
Depositary for such U.S. Global Security or Offshore Global Security or the
nominee of such Depositary, (ii) be delivered, as applicable, either to the
Trustee, as U.S. Depositary, or to the Common Depositary and (iii) bear
legends as set forth on the face of the form of the 2006 Senior Note or the
2011 Senior Note, as the case may be.
Members of, or Participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian or
the Common Depositary, as applicable, or under such Global Security, and
the Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers
of such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees, and as further specified in
Section 305D. Transfers of interests in one Global Security to parties who
will hold the interests through the same Global Security will be effected
in the ordinary way in accordance with the respective rules and operating
procedures of the applicable Depositaries and the provisions of Section
305D.
9
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" of Euro-clear and the
"General Terms and Conditions of Clearstream" and "Customer Handbook" of
Cedel S.A. shall be applicable to interests in the Global Securities that
are held by Agent Members through Euro-clear and Cedel S.A.
(c) Any beneficial interest in one of the Global Securities that
is transferred to a person who takes delivery in the form of an interest in
another Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in such other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions,
if any, and other procedures applicable to beneficial interests in such
other Global Security for so long as it remains such an interest.
(d) In connection with any transfer of a portion of the interests
in a Global Security to beneficial owners pursuant to paragraph (b) of this
Section 305C, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Security in an amount
equal to the principal amount of the interest in such Global Security to be
transferred.
(e) In connection with the transfer of the U.S. Global Securities
or the Offshore Global Securities, in whole, to beneficial owners pursuant
to paragraph (b) of this Section 305C, the U.S. Global Securities or
Offshore Global Securities, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation.
(f) The registered holder of a Global Security may grant proxies
and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
(g) The Securities are initially solely issuable as Global
Securities. Registered Securities shall only be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security, if (i) the Depositary with respect to such Global Securities
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security, as the case may be, and a successor
Depositary is not appointed by the Company within 90 days of such notice or
(ii) an Event of Default has occurred and is continuing and the Registrar
has received a request to the foregoing effect from the Depositary or the
Trustee.
(h) All Securities issued upon any transfer or exchange of
Securities shall be valid, legally enforceable obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such transfer or exchange.
SECTION 305D. (a) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of 2006
Senior Notes or 2011 Senior Notes constituting a Restricted Security to a
qualified institutional buyer as defined in Rule 144A (a "QIB"):
10
(i) if the 2006 Senior Notes or 2011 Senior Notes to be
transferred consist of an interest in the U.S. Global Securities, the
transfer of such interest may be effected through the book-entry
system maintained by the Depositary; and
(ii) (A) if the proposed transferor is an Agent Member holding a
beneficial interest in the Offshore Global 2006 Senior Notes or
Offshore Global 2011 Senior Notes, upon receipt by the Registrar of
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the Offshore Global
2006 Senior Notes or Offshore Global 2011 Senior Notes in an amount
equal to the principal amount of the beneficial interest in the
Offshore Global 2006 Senior Notes or Offshore Global 2011 Senior Notes
to be transferred, and (B) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the U.S. Global 2006 Senior Notes
or U.S. Global 2011 Senior Notes in an amount equal to the principal
amount of the Offshore Global 2006 Senior Notes or Offshore Global
2011 Senior Notes to be transferred and the Trustee shall decrease the
amount of the Offshore Global 2006 Senior Notes or Offshore Global
2011 Senior Notes.
(b) Transfers of Interests in the Offshore Global Securities. The
following provisions shall apply with respect to any transfer of interests
in Offshore Global Securities:
(i) until the expiration of the 40-day distribution compliance
period within the meaning of Rule 903 of Regulation S, any offer or
sale of interests in the Offshore Global Securities shall be made (a)
outside the United States (1) in compliance with Rule 903 or 904 under
the Securities Act or (2) to a QIB in compliance with Rule 144A and
(b) in accordance with all applicable securities laws of the states of
the United States or any other applicable jurisdiction;
(ii) prior to the removal of the legend from the Offshore Global
Securities pursuant to Section 305B, the Registrar shall refuse to
register such transfer unless such transfer complies with this Section
305D, and
(iii) after such removal, the Registrar shall register the
transfer of any such 2006 Senior Note or 2011 Senior Note without
requiring any additional certification.
(c) Transfers to Regulation S Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of a
Restricted Security to a Regulation S Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Regulation S Non-U.S. Person if (A) the Security to be transferred is
an interest in U.S. Global Securities, (B) the proposed transferor has
delivered to the Registrar a
11
certificate substantially in the form of Appendix I hereto and (C) if
requested by the Company, the proposed transferee has delivered to the
Registrar an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act.
(ii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in U.S. Global 2006 Senior Notes or U.S. Global
2011 Senior Notes, upon receipt by the Registrar of (x) the documents,
if any, required by paragraph (i) and (y) instructions in accordance
with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global 2006 Senior Notes or U.S. Global
2011 Senior Notes in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(B) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Offshore Global 2006 Senior Notes or Offshore Global 2011 Senior
Notes in an amount equal to the principal amount of the U.S. Global
Securities to be transferred, and the Trustee shall decrease the
amount of the U.S. Global Securities.
SECTION 305E. General. By its acceptance of any 2006 Senior Notes or
2011 Senior Notes bearing the legends set forth on the face of the form of
the 2006 Senior Note or 2011 Senior Note, as the case may be, each Holder
of such a 2006 Senior Note or 2011 Senior Note acknowledges the
restrictions on transfer of such 2006 Senior Note or 2011 Senior Note set
forth in the Indenture and in such legends and agrees that it will transfer
such 2006 Senior Note or 2011 Senior Note only as provided in the
Indenture.
The Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to this Section 305E. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
SECTION 10. For the sole benefit of the Holders of the 2006 Senior Notes and the
2011 Senior Notes, Section 307 shall be amended by deleting the first paragraph
thereof and replacing such paragraph in its entirety with the following:
(a) 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.
12
SECTION 11. For the sole benefit of the Holders of the 2006 Senior Notes and the
2011 Senior Notes, Section 501 shall be amended by deleting in subparagraphs (4)
and (5) thereunder, the references to the amount $100 million, and replacing
such references with the amount $250 million.
SECTION 12. For the sole benefit of the Holders of the 2006 Senior Notes and the
2011 Senior Notes, the first paragraph of Section 1007 of the Indenture is
hereby deleted and replaced by the following paragraphs:
The Company shall, subject to the exceptions and limitations set
forth below, pay as additional interest on the Securities of any series,
such additional amounts (the "Additional Amounts") as are necessary in
order that the net payment to be made by the Company or by a Paying Agent
on behalf of the Company, of the principal of and interest on a series of
Securities to a Holder who is a non-United States Person, 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 such payment, will not be
less than the amount provided in the 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 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 a "10-percent shareholder" of the Company, as
defined in Section 871(h)(3) of the United States Internal Revenue
Code or any successor provision thereof; 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;
13
(2) to any Holder that is not the sole beneficial owner of a 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 any 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 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 the Company or by a Paying Agent
on its behalf 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 Security, if such payment can be made without such withholding by
any other Paying Agent on behalf of the Company; or
(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
The Securities are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation
applicable thereto. Except as otherwise provided for in this Section 1007
and Section 1101, the Company shall not be required to make any payments
with respect to any tax, assessment or other governmental charge imposed by
any government or a political subdivision or taxing authority thereof or
therein.
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
14
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.
SECTION 13. For the sole benefit of the Holders of the 2006 Senior Notes and the
2011 Senior Notes, Section 1010 of the Indenture is hereby deleted in its
entirety and replaced by the following Section 1010:
Section 1010. Limitations on Liens.
The Company shall not create, assume or suffer to exist any
Lien on any of its property or assets, without securing the Securities
of any applicable series equally and ratably with (or prior to) such
secured Indebtedness; provided, however, that the foregoing shall
apply only to Liens which in the aggregate exceed 15% of the Company's
total consolidated assets as of the end of the Company's most recent
accounting period preceding the creation or assumption of any such
Lien (reduced by any Attributable Debt with respect to any Sale and
Leaseback Transaction permitted under Section 1011 below). This
restriction will not apply to Capitalized Leases or to Indebtedness
secured by (a) Liens existing on January 17, 2001, in the case of the
2006 Senior Notes and May 17, 2001, in the case of the 2011 Senior
Notes, 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 14. For the sole benefit of the Holders of the 2006 Senior Notes,
Section 1101 of the Indenture is hereby deleted in its entirety and replaced by
the following Section 1101:
Section 1101. Optional Redemption.
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 January 9, 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
a series of Securities, any Additional Amounts, the Company may
redeem, in accordance with this Article Eleven, 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
15
relevant Regular Record Date that is prior to the Redemption Date to
receive interest on the relevant Interest Payment Date).
SECTION 15. For the sole benefit of the Holders of the 2011 Senior Notes,
Section 1101 of the Indenture is hereby deleted in its entirety and replaced by
the following Section 1101:
Section 1101. Optional Redemption.
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
a series of Securities, any Additional Amounts, the Company may
redeem, in accordance with this Article Eleven, 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).
In addition, the Securities of any given series will be
redeemable, in accordance with this Article Eleven, 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). The Make-Whole Amount with respect to
such a redemption shall be calculated by an independent investment
banking institution of national standing appointed by the Company. If
the Company fails to so appoint an independent investment banking
institution at least 45 Business Days prior to the Redemption Date, or
if such institution is unwilling or unable to calculate the Make-Whole
Amount, the calculation of such Make-Whole Amount shall be made by an
independent investment banking institution of national standing
appointed by the Trustee. If, for purposes of calculating the
Make-Whole Amount, the Reinvestment Rate shall not be available as set
forth in the definition thereof, the Reinvestment Rate shall be
calculated by interpolation or extrapolation of comparable rates
selected by the independent investment banking institution.
SECTION 16. For the sole benefit of the Holders of the 2006 Senior Notes and the
2011 Senior Notes, a new Section 1108 shall be added to the Indenture as
follows:
(a) Exchange Notes may from time to time be executed by the
Company and delivered to the Trustee for authentication and the Trustee
shall thereupon authenticate and deliver said Exchange Notes, upon
cancellation of an equal amount of
16
Restricted Securities tendered in exchange, upon a Company Order without
further action by the Company.
(b) No exchange of 2006 Senior Notes or 2011 Senior Notes for
Exchange Notes shall occur until a Registration Statement shall have been
declared effective by the Commission and any 2006 Senior Notes or 2011
Senior Notes that are exchanged for Exchange Notes shall be cancelled by
the Trustee.
SECTION 17. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SIXTH
SUPPLEMENTAL INDENTURE.
SECTION 18. This Sixth 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.
SECTION 19. Except as herein amended with respect to the 2006 Senior Notes and
2011 Senior Notes, all applicable terms, conditions and provisions of the
Indenture, as supplemented, shall continue in full force and effect and shall
remain binding and enforceable in accordance with their respective terms.
17
IN WITNESS WHEREOF, the parties have caused this Sixth
Supplemental Indenture to be duly executed and attested, all as of the day and
year first written above.
VIACOM INC.
By:
------------------------------------------
Name:
Title:
ATTEST
By:
---------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.
By:
------------------------------------------
Name:
Title:
ATTEST
By:
---------------------------
Name:
Title:
CITIBANK, N.A.
By:
------------------------------------------
Name:
Title:
ATTEST
By:
---------------------------
Name:
Title:
EXHIBIT A TO SIXTH SUPPLEMENTAL INDENTURE
Unless and until a Security is exchanged for an Exchange Note or sold
in connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global Notes shall bear the legend
set forth below on the face thereof and (ii) the Offshore Global Notes shall
bear the legend set forth below on the face thereof until at least the 41st day
after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Appendix I hereto:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT (" RULE 144A")), OR (B) IT IS NOT
A U.S. PERSON AND IS ACQUIRING THIS SENIOR SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 903 OR 904 OF REGULATION S, (2) AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SENIOR SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF
(X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY
PREDECESSOR OF THIS SENIOR SECURITY) AND THE LAST DATE ON WHICH VIACOM OR ANY
AFFILIATE OF VIACOM WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE)
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO VIACOM OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SENIOR SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE UNITED STATES, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING AND
CONSISTENT WITH THE TERMS AND CONDITIONS OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT VIACOM, THE TRUSTEE, THE TRANSFER AGENT AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT
TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO VIACOM AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
Each Offshore Global Note shall bear the following legend: PRIOR TO
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING, OF
REGULATION S, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
Each Global Security shall bear the following legend: 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.
Any Global Security issued hereunder shall bear a legend in
substantially the following form: 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 Depository or a nominee of such successor Depository.
VIACOM INC.
6.40% Senior Notes due 2006
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $
CUSIP:
CINS:
ISIN:
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 January 30, 2006 at the office
or agency of the Company referred to below, and to pay interest thereon on July
30, 2001 and semi-annually thereafter, on January 30 and July 30 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 6.40% per annum,
until theprincipal 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 January 15 or July 15, 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.
The statements set forth in the restrictive legends above are an
integral part of the terms of this Note and by acceptance hereof each holder of
this Note agrees to be subject to and bound by terms and provisions set forth in
such legend.
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 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
6.40% Senior Notes due 2006, initially limited in aggregate principal amount to
$400,000,000. This Security is a global Security representing $ of the
Securities.
INCLUDE IF SECURITY IS A GLOBAL NOTE: 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.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of May 17, 2001. In the event that (i) the Company
fails to file an Exchange Offer Registration Statement with respect to the Notes
with the Commission on or prior to the 60th calendar day following the Closing
Date, (ii) the Commission does not declare such Exchange Offer Registration
Statement effective on or prior to the 180th calendar day following the Closing
Date, (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 be made on
or before July 30, 2001, or (iv) if required, a Shelf Registration Statement
with respect to the Notes is not declared effective by the Commission on or
prior to the 240th calendar day following the Closing Date or ceases to be
effective or usable during the periods specified in the Registration Rights
Agreement (each, a
"Registration Default"), the per annum interest rate borne by the Notes shall be
increased by one-quarter of one percent (0.25%) per annum from the end of the
applicable period giving rise to such Registration Default. The interest rate
borne by the Notes will be increased by an additional one-quarter of one percent
(0.25%) per annum for each subsequent 90-day period during which any such
Registration Default 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. Following the cure of all Registration Defaults, the interest rate borne
by the Notes shall be reduced to the original interest rate borne by the Notes.
No increase in the rate shall be payable for any period during which a Shelf
Registration is effective. All accrued additional interest shall be paid to
Holders by the Company in the same manner as interest is paid pursuant to the
Indenture. All terms used in this Note that are defined in the Registration
Rights Agreement shall have the meanings assigned to them in the Registration
Rights Agreement.
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 January 9, 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).
INCLUDE IF SECURITY IS A GLOBAL 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 Depository, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.
INCLUDE IF SECURITY IS A RESTRICTED SECURITY: Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
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
duly executed.
Dated: , 2001 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: , 2001
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: , 2001 VIACOM INTERNATIONAL INC.
By:
----------------------
ATTEST:
- -------------------------------
EXHIBIT B TO SIXTH SUPPLEMENTAL INDENTURE
Unless and until a Security is exchanged for an Exchange Note or
sold in connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global Notes shall bear the legend
set forth below on the face thereof and (ii) the Offshore Global Notes shall
bear the legend set forth below on the face thereof until at least the 41st day
after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Appendix I hereto:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT (" RULE 144A")), OR (B) IT IS NOT
A U.S. PERSON AND IS ACQUIRING THIS SENIOR SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 903 OR 904 OF REGULATION S, (2) AGREES NOT TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SENIOR SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF
(X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY
PREDECESSOR OF THIS SENIOR SECURITY) AND THE LAST DATE ON WHICH VIACOM OR ANY
AFFILIATE OF VIACOM WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE)
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO VIACOM OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SENIOR SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE UNITED STATES, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING AND
CONSISTENT WITH THE TERMS AND CONDITIONS OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT VIACOM, THE TRUSTEE, THE TRANSFER AGENT AND THE
REGISTRAR SHALL
B-1
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO VIACOM AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Each Offshore Global Note shall bear the following legend: PRIOR TO
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
Each Global Security shall bear the following legend: 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.
Any Global Security issued hereunder shall bear a legend in
substantially the following form: 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
Depository or a nominee of such successor Depository.
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.)
No. $
CUSIP:
CINS:
ISIN:
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.
The statements set forth in the restrictive legends above are an
integral part of the terms of this Note and by acceptance hereof each holder of
this Note agrees to be subject to and bound by terms and provisions set forth in
such legend.
B-1
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 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.
INCLUDE IF SECURITY IS A GLOBAL NOTE: 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.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated as of May 17, 2001. In the event that (i)
the Company fails to file an Exchange Offer Registration Statement with respect
to the Notes with the Commission on or prior to the 60th calendar day following
the Closing Date, (ii) the Commission does not declare such Exchange Offer
Registration Statement effective on or prior to the 180th calendar day following
the Closing Date, (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
be made on or before July 30, 2001, or (iv) if required, a Shelf Registration
Statement with respect to the Notes is not declared effective by the Commission
on or prior to the 240th calendar day following the Closing Date or ceases to be
effective or usable during the periods specified in the Registration Rights
Agreement (each, a
"Registration Default"), the per annum interest rate borne by the Notes shall be
increased by one-quarter of one percent (0.25%) per annum from the end of the
applicable period giving rise to such Registration Default. The interest rate
borne by the Notes will be increased by an additional one-quarter of one percent
(0.25%) per annum for each subsequent 90-day period during which any such
Registration Default 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. Following the cure of all Registration Defaults, the interest rate borne
by the Notes shall be reduced to the original interest rate borne by the Notes.
No increase in the rate shall be payable for any period during which a Shelf
Registration is effective. All accrued additional interest shall be paid to
Holders by the Company in the same manner as interest is paid pursuant to the
Indenture. All terms used in this Note that are defined in the Registration
Rights Agreement shall have the meanings assigned to them in the Registration
Rights Agreement.
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 Note 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.
INCLUDE IF SECURITY IS A GLOBAL 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 Depository, shall make an adjustment on its records to reflect
such deposit or withdrawal in accordance with the rules and procedures of the
Depositary.
INCLUDE IF SECURITY IS A RESTRICTED SECURITY: Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
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, andoffered 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: , 2001 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: , 2001
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: , 2001 VIACOM INTERNATIONAL INC.
By:
----------------------
ATTEST:
- -------------------------------
APPENDIX I TO SIXTH SUPPLEMENTAL INDENTURE
EXCHANGE CERTIFICATE
VIACOM INC.
6.40% Senior Notes due 2006
6.625% Senior Notes due 2011
To: Viacom Inc.
1515 Broadway
New York, NY 10036
Citibank, N.A.
111 Wall Street, 14th Floor
New York, NY 10005
We, as the seller of the Notes ("Seller"), are requesting a
transfer (tick one of the following) of:
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2011 Senior Notes] to a purchaser wanting to receive a
beneficial interest in the [U.S. Global 2006 Senior Notes / U.S. Global
2011 Senior Notes].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2011 Senior Notes] to a purchaser wanting to receive a
definitive restricted [2006 Senior Note / 2011 Senior Note].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2011 Senior Notes] to a purchaser wanting to receive a
definitive [2006 Senior Note / 2011 Senior Note].
- - our unrestricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a beneficial interest in the [U.S. Global 2006
Senior Notes / U.S. Global 2011 Senior Notes].
- - our unrestricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a restricted definitive [2006 Senior Note /
2011 Senior Note].
- - our unrestricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a beneficial interest in the [Offshore Global
2006 Senior Notes / Offshore Global 2011 Senior Notes].
- - our unrestricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive an unrestricted definitive [2006 Senior Note /
2011 Senior Note].
- - our restricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a beneficial interest in the [Offshore Global
2006 Senior Notes / Offshore Global 2011 Senior Notes].
- - our restricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a beneficial interest in the [U.S. Global 2006
Senior Notes / U.S. Global 2011 Senior Notes].
- - our restricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive an unrestricted definitive [2006 Senior Note /
2011 Senior Note].
- - our restricted definitive [2006 Senior Note / 2011 Senior Note] to a
purchaser wanting to receive a restricted definitive [2006 Senior Note /
2011 Senior Note].
- - our beneficial interest in the [U.S. Global 2006 Senior Notes / U.S. Global
2011 Senior Notes] to a purchaser wanting to receive a beneficial interest
in the [Offshore Global 2006 Senior Notes / Offshore Global 2011 Senior
Notes].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2011 Senior Notes] to a purchaser wanting to receive a
restricted definitive [2006 Senior Note / 2011 Senior Note].
- - our beneficial interest in the [U.S. Global 2006 Senior Notes / U.S. Global
2011 Senior Notes] to a purchaser wanting to receive an unrestricted
definitive [2006 Senior Note / 2011 Senior Note].
In connection with such request, and in respect of such Securities,
we, as the Seller do hereby certify that such Securities are being transferred
in accordance with the transfer restrictions set forth in the offering
memorandum prepared in connection with the issuance of the Securities and the
Securities and that we are transferring such Securities (tick one of the
following):
- - to a person who the Seller reasonably believes is purchasing for its own
account or accounts as to which it exercises sole investment discretion;
such person and each such account is a "qualified institutional buyer" (as
defined in Rule 144A of the United States Securities Act of 1933, as
amended (the "Securities Act")); the purchaser is aware that the sale to it
is being made in reliance upon Rule 144A; and such transaction meets the
requirements of Rule 144A and is in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction, or
- - in accordance with Regulation S under the Securities Act, and accordingly
the Seller does hereby certify that:
(i) the offer of the Securities was not made to a person in the United
States;
[(ii) at the time the buy order was originated, the Buyer was outside
of the United States or the Seller or any person acting on its behalf
reasonably believed that the Buyer was outside the United States;](1)
[(ii) the transaction was executed in, or on or through the facilities
of a designated offshore securities market and neither the Seller nor
any person acting on its behalf knows that the transaction was
prearranged with a Buyer in the United States;](1)
(iii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(a) or 904(a) of Regulation S, as
applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(v) with regard to transfers occurring within the 40-Day Restricted
Period, any beneficial interest in [Offshore Global 2006 Senior Notes
/ Offshore Global 2011 Senior Notes] shall be held through either
Euroclear or Clearstream, Luxembourg.
- - other than in accordance with the above and documents are being furnished
to the Company and the Registrar which comply with the conditions of
transfer set forth in the [2006 Senior Note / 2011 Senior Note] and the
relevant agreements.
If none of the foregoing boxes are ticked, the Registrar shall not be obliged to
register the transfer of the [2006 Senior Note / 2011 Senior Note].
Reference is hereby made to the Sixth Supplemental Indenture dated as of May 17,
2001, among Viacom Inc. (the "Company"), Viacom International Inc. (the
"Guarantor") and Citibank, N.A. to the Indenture dated as of May 15, 1995, among
the Company, the Guarantor and the trustee party thereto, 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 and as further supplemented by the Fifth
Supplemental Indenture, dated as of January 17, 2001 among the Company, the
Guarantor and the Trustee (as so amended, the "Indenture"). Terms used but not
defined herein shall have the meanings given to them in the Indenture. Other
terms shall have the meanings given to them in Regulation S.
- -------------------------
(1) Include only one of alternative paragraphs (ii) as appropriate.
[NAME OF SELLER]
By:
--------------------------------
Name of Seller
Dated:
------------------------------
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PRINT NAME AND ADDRESS OF TRANSFEREE)
U.S.$_______ principal amount of this Security, and all rights with respect
thereto, and irrevocably constitutes and appoints __________________ as attorney
to transfer this Security on the books kept for registration thereof, with full
power of substitution.
Dated
------------------------- -----------------------------------
Certifying Signature
Signed
-------------------------
Note:
(i) The signature on this transfer form must correspond to the name as it
appears on the face of this Security.
(ii) A representative of the holder of this Security should state the
capacity in which he or she signs (e.g., executor).
(iii) The signature of the person effecting the transfer shall conform to
any list of duly authorized specimen signatures supplied by the registered
holder or shall be certified by a recognized bank, notary public or in such
other manner as the paying agent, acting in its capacity as transfer agent
or the Trustee, acting in its capacity as registrar, may require.
EXHIBIT 4.10
FORM OF
SEVENTH SUPPLEMENTAL INDENTURE
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
CITIBANK, N.A.,
Trustee
----------------------------------
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of May 31, 2001
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
CITIBANK, N.A.,
Trustee
----------------------------------
Senior Debt Securities
SEVENTH SUPPLEMENTAL INDENTURE, dated as of May 31, 2001,
among VIACOM INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL
INC., a Delaware corporation (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, trustee (the "Trustee") to the
Indenture, dated as of May 15, 1995, among the Company, the Guarantor and the
trustee party thereto, 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
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 amended, the "Indenture").
RECITALS OF THE COMPANY
WHEREAS, Section 901(4) of the Indenture permits supplements
thereto without the consent of Holders of Securities to change any provisions of
the Indenture, where there are no Securities Outstanding of any series which are
entitled to the benefit of such provisions;
WHEREAS, the Company wishes to make changes to certain
provisions of the Indenture to give the Company the ability to issue Securities
under the Indenture that are convertible into or exchangeable for securities of
any Person (including the Company); and
WHEREAS, there are no Securities Outstanding of any series
which are entitled to the benefit of the provisions that will be modified
herein.
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE
WITNESSETH:
For consideration, the adequacy and sufficiency of which are
hereby acknowledged by the parties hereto, each party agrees as follows, for the
benefit of the other party and for the equal and proportionate benefit of all
Holders of Securities, as follows:
SECTION 1. For the purpose of this Seventh Supplemental Indenture, all terms
used herein, unless otherwise defined, shall have the meaning assigned to them
in the Indenture, as amended hereby.
SECTION 2. For the benefit of the Holders of all Securities, the first Recital
of the Indenture shall be deleted and replaced with the following Recital:
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"), which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company),
to be issued in one or more series as provided in this Indenture.
SECTION 3. For the benefit of the Holders of all Securities, Section 301(5) of
the Indenture shall be deleted and replaced with the following:
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of (and
premium, if any, 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, where Securities of any series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and, if different
than the location specified in Section 105, the place or places where notices or
demands to or upon the Company or, if applicable, the Guarantor in respect of
the Securities of the series and this Indenture may be served;
SECTION 4. For the benefit of the Holders of all Securities, a new Section
301(26) of the Indenture shall added as follows:
(26) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the Company),
the terms and conditions upon which such Securities will be so convertible or
exchangeable;
SECTION 5. For the benefit of the Holders of all Securities, Section 901(6) of
the Indenture shall be deleted and replaced with the following:
(6) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
SECTION 6. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SEVENTH
SUPPLEMENTAL INDENTURE.
SECTION 7. This Seventh 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
SECTION 8. Except as herein amended, all applicable terms, conditions and
provisions of the Indenture, as supplemented, shall continue in full force and
effect and shall remain binding and enforceable in accordance with their
respective terms.
3
IN WITNESS WHEREOF, the parties have caused this Seventh
Supplemental Indenture to be duly executed and attested, all as of the day and
year first written above.
VIACOM INC.
By:
--------------------------------
Name:
Title:
ATTEST
By:
-------------------------------------
Name:
Title:
VIACOM INTERNATIONAL INC.
By:
--------------------------------
Name:
Title:
ATTEST
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
--------------------------------
Name:
Title:
ATTEST
By:
---------------------------
Name:
Title:
EXHIBIT 4.11
FORM OF
DEBT WARRANT AGREEMENT
VIACOM INC.
AND
_____________________________________________,
Warrant Agent
_________________________
DEBT WARRANT AGREEMENT
____________________________
Providing for the Issuance of
%[Notes/Debentures] Due Purchase Warrants
Dated as of ____________, 20__
WARRANT AGREEMENT
THIS DEBT WARRANT AGREEMENT is entered into as of, 20__ between Viacom
Inc., a corporation incorporated under the laws of Delaware (the "Company") and
_____________________, a ________ incorporated under the laws of ____________
(the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants, each Warrant
entitling the registered owner thereof to purchase ___% [Notes/Debentures] Due
______ of the Company at the price and upon the terms and conditions herein set
forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as
provided in this Agreement; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as provided for in this
Agreement legally valid and binding obligations of the Company with the benefits
and subject to the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration mutually given and
received, the receipt and sufficiency thereof is hereby acknowledged, it is
hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Except as otherwise expressly provided or
unless the context otherwise requires, the terms defined in this Section 1.1
shall for all purposes of this Agreement, have the meanings herein specified,
the following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
The term "Agent" shall mean _____________, a _________ incorporated
under the laws of ____________ or its lawful successors from time to time
appointed in accordance with this Agreement.
The term "Agreement" shall mean this Debt Warrant Agreement between
the Company and the Agent, as such agreement is originally executed or as
it may from time to time be supplemented, modified or amended as provided
herein.
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City of New York or ____________ is neither a legal
holiday nor a day on which banking institutions are authorized by law or
regulation to close.
The term "Company" shall mean Viacom Inc., a Delaware corporation,
until a successor entity shall have become such pursuant to the applicable
provisions of this Agreement and thereafter the term "Company" shall mean
such successor entity.
The term "Event of Default" shall mean any event specified as such in
Section 6.1 hereof. An Event of Default shall "exist" if an Event of
Default shall have occurred and be continuing.
The term "Exercise Date" shall mean each date during the Exercise
Period on which [Notes/Debentures] are purchased by a Registered Owner
through the exercise of all or a portion of its Warrants.
The term "Exercise Form" shall mean the form designated Exercise Form
attached as Annex II to each Warrant.
The term "Exercise Period" shall mean the period commencing at 9:00
A.M. (_____ time) on _____________, 20__ and ending at 4:00 P.M. (_________
time) on _____________, _____.
The term "Exercise Price" shall have the meaning accorded such term in
Section 2.1 of this Agreement.
The term "Indenture" shall mean that certain Indenture dated as of
___________ between the Company and ___________, as trustee, as such
Indenture was originally executed or as it may from time to time be
supplemented, modified or amended in accordance with the terms thereof.
The term "[Notes/Debentures]" means any or all, as the case may be, of
the Company's ___% [Notes/Debentures] Due ___________, authenticated and
delivered as provided in the Indenture.
The term "Notice of Intent to Exercise" shall have the meaning
accorded thereto in Section 4.1 of this Agreement. The form of Notice of
Intent to Exercise is attached as Annex I to each Warrant.
The term "Outstanding" when used with reference to the Warrants shall
mean, as of the date of determination, all Warrants theretofore
authenticated and delivered under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or
delivered to the Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other
Warrants shall have been authenticated and delivered under
this Agreement.
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a
trust, an unincorporated organization, or a government or any agency,
authority or political subdivision thereof.
2
The term "Register" shall mean the books for the registration and
transfer of Warrants which books are kept by the Agent pursuant to Section
3.1 hereof.
The term "Time of Expiry" means 4:00 p.m., _________ time, on
____________, 20__.
The term "Warrantholders" or "Registered Owners" means the persons
from time to time who are registered owners of the Warrants.
The term "Warrantholders' Request" means an instrument signed in one
or more counterparts by the Warrantholders entitled to purchase in the
aggregate not less than a majority of the aggregate principal amount of
[Notes/Debentures] which could be purchased pursuant to all Warrants then
Outstanding requesting the Agent to take some action or proceeding
specified therein.
The term "Warrants" means the ___% [Notes/Debentures] Due 20__
Purchase Warrants issued hereunder pursuant to which Warrantholders have
the right to purchase [Notes/Debentures] on the terms and conditions herein
set forth.
The term "Written Order of the Company" and "Written Consent of the
Company" mean, respectively, a written order or consent signed in the name
of the Company by any one of its officers and may consist of one or more
instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. Issuance And Terms Of Warrants. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than [U.S. $/Specified Currency]_______ in principal amount of the
[Notes/Debentures] is hereby authorized. The Warrants are hereby designated as
the "[Notes/Debentures] Due Purchase Warrants." The Warrants shall be delivered
by the Company to the Agent to be authenticated by the Agent and delivered in
accordance with the Written Order of the Company. The Warrants shall be dated
________, 20__ and shall be issuable in fully registered form and in
denominations that permit the purchase upon exercise of [U.S. $/Specified
Currency]_______ principal amount of [Notes/Debentures] and any integral
multiples thereof.
The Warrants shall be exercisable on any Business Day during the
Exercise Period. Each Warrant in the denomination of [U.S. $/Specified Currency]
shall entitle the Registered Owner thereof to exercise such Warrant in
accordance with and pursuant to the terms thereof for the purchase of a
[Note/Debenture] in the principal amount of [U.S. $/Specified Currency] at par
plus interest accrued thereon from _______________, _______, _____ to but not
including, the Exercise Date (the "Exercise Price").
SECTION 2.2. Form of Warrants. The Warrants shall be in substantially
the form set out in this Section 2.2, with such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Agreement. The Warrants may
3
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
officer executing such Warrants as evidenced by such officer's execution
thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up to
[U.S. $/Specified Currency] ________ in Aggregate Principal Amount of ___%
[Notes/Debentures] Due _________.
This Warrant expires at 4:00 p.m. (_______ time) on [________,
_________] and thereafter will be void and of no value. Notice of the holder's
intent to exercise this Warrant must be given to ________________, as Agent not
later than 4:00 P.M. (________ time) [____________, _____].
VIACOM INC.
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the Registered
Owner hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Debt Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
Viacom Inc. (the "Company") and ______________, as Agent, (the "Agent"), to
purchase at par plus interest accrued thereon, if any, at any time from 9:00
A.M. (___________ time) [____________, _____] to 4:00 P.M. (________ time)
[________________, _____], inclusive (each such date being referred to as an
"Exercise Date") up to [U.S. $/Specified Currency] ___________ in aggregate
principal amount of ___% [Notes/Debentures] Due 0000 (the "[Notes/Debentures]")
of Viacom Inc. (the "Company"), by providing written notice to the Agent of the
Warrantholder's intention to exercise its right to purchase provided for herein
specifying the number of Warrants which the Warrantholder wishes to exercise,
such notice to be provided in the notice form annexed hereto as Annex II not
earlier than 9:00 A.M. (________ time)on [_________________, ____] and not later
than 4:00 P.M. (___________ time) [____________, ___], and by surrendering to
the Agent at its principal office in _____________, ___________ on any Exercise
Date, this Warrant, with the Exercise Form on which this Warrant is exercised,
the [Notes/Debentures] will be delivered as described below against payment
therefor in [U.S. Federal Reserve or other United States/Specified Currency]
funds current and immediately available to the Agent at the amount designated in
the Warrant Agreement, in each case in an amount equal to the purchase price of
the [Notes/Debentures] so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued
under the provisions of the Warrant Agreement. Reference is hereby made for
particulars of the rights of the Warrantholders and of the Company in respect
thereof and the terms and conditions upon which the Warrants are issue and held,
all to the sole effect as if the provisions of the Warrant Agreement were herein
set forth, to all of which the Warrantholder by acceptance hereof assents. The
Company will furnish to the Warrantholder, upon written request and without
charge, a copy
4
of the Warrant Agreement. All capitalized terms not otherwise defined herein,
shall have the meanings ascribed thereto in the Warrant Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this
Warrant will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date.
If [Notes/Debentures] are purchased in an aggregate principal amount
which is less than the total principal amount of the [Note/Debentures] that can
be purchased pursuant to this Warrant, the Warrantholder hereof will be entitled
to receive without charge a new Warrant in respect of the balance of the
principal amounts of [Notes/Debentures] which the Registered Owner hereof was
entitled to purchase under the surrendered Warrant and which were not then
purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
This Warrant is registered on the books of the Company and is
transferable only in accordance with the provisions of the Warrant Agreement by
surrender thereof at the principal office of the Agent duly endorsed or
accompanied by a written instrument of transfer duly executed by the Registered
Owner of this Warrant or its attorney duly authorized in writing all in
accordance with the terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed
in accordance with the laws of New York, without regard to principles of
conflicts of law.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly
executed as of _________________, ___.
VIACOM INC.
By____________________________________
5
Certificate of Authentication
This is one of the Warrants described in the within-mentioned Debt Warrant
Agreement
______________________, as Agent
By______________________________________
Authorized Officer
6
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant
Number______ (the "Warrant") hereby notifies you pursuant to Section 4.1 of the
Debt Warrant Agreement dated as of _______, __ (the "Warrant Agreement") between
Viacom Inc. (the "Company") and [__________, the undersigned], of the
undersigned's intention to exercise _______ of such Warrants on ____________,
____) (the "Exercise Date") to purchase [U.S. $/Specified Currency]
________________ in aggregate principal amount of the Company's ___%
[Notes/Debentures] Due __________________ (the "[Notes/Debentures]") at par plus
interest accrued, if any, from and after [___________, _____]. The purchase
price shall be a total of [U.S. $/Specified Currency] __________ representing
[U.S. $/Specified Currency] _______ in principal and [U.S. $/Specified Currency]
in accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered
to the Agent at its principal office in ________________, ________. Payment of
the purchase price of the [Notes/Debentures] shall be made in [U.S. Federal
Reserve or other United States/Specified Currency funds] immediately available
at the principal office of the Agent on the Exercise Date. The undersigned shall
direct such [Notes/Debentures] be registered and delivered in the name(s) and
the amount(s) set forth opposite the undersigned's name on Annex II to the
Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By_____________________________
7
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the
Warrant attached hereto hereby exercises on _____________, ____ (the "Exercise
Date") Warrants to purchase [U.S. $/Specified Currency] _______ in aggregate
principal amount of VIACOM INC.'s ___% [Notes/Debentures] Due ____________ (the
"[Notes/Debentures]") at par plus $______ in accrued interest on the
[Notes/Debentures] from [_________________, ___], and agrees to transfer on the
Exercise Date in [U.S. $/Specified Currency] funds immediately available to the
Agent (at [account]) such purchase price of the [Notes/Debentures] all in
accordance with the terms and conditions of the Debt Warrant Agreement dated as
of ____________, ____ (the "Warrant Agreement") between VIACOM INC. and
[____________________], as Agent. The undersigned hereby irrevocably directs
that such [Notes/Debentures] be registered and delivered in accordance with the
directions set forth herein.
The undersigned acknowledges that all taxes or other governmental
charges payable upon the registration and delivery of such [Notes/Debentures]
(other than in connection with each original issue and sale of the
[Notes/Debentures]), including any transfer taxes payable if the
[Notes/Debentures] are to be registered in the name of a person or persons other
than the undersigned Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
[NAME OF WARRANTHOLDER]
By_________________________________
Please check box if [Notes/Debentures] are to be delivered at the offices of
_________ on the Exercise Date, failing which the [Notes/Debentures] will be
mailed by certified mail return receipt requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
8
SECTION 2.3. Mutilated, Lost, Destroyed or Stolen Warrants. If (i) any
mutilated Warrant is surrendered to the Agent, or the Company and the Agent
receive evidence to their satisfaction of the destruction, loss or theft of any
Warrant and (ii) there is delivered to the Company and the Agent such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Agent that such Warrant has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Warrants.
SECTION 2.4. Warrantholder Not a Registered Owner of the
[Notes/Debentures]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
SECTION 2.5. Warrants to Rank Pari Passu. All Warrants shall rank pari
passu with each other.
SECTION 2.6. Execution of Warrants. The Warrants shall be signed in
the name and on behalf of the Company by one of its officers. The signature of
the officer executing the Warrants may be manual or facsimile. In case any
officer of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
9
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
SECTION 2.7. Purchase of Warrants by the Company. The Company may
purchase in the market, by private contracts or otherwise all or any portion of
the Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
SECTION 3.1. Register. The Agent, as agent of the Company, shall
maintain, at its principal office in ____________, ____, the Register in which,
subject to such reasonable regulations as it and the Company may prescribe, it
shall provide for the registration of the Warrants and the transfer of Warrants
as in this Agreement provided. The Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. The Registered Owners of the Warrants shall present directly to the Agent
all requests for (a) registration of transfer of Warrants, (b) exchange of
Warrants for new Warrants in authorized denominations and (c) replacement of
Warrants in the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a
list of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
SECTION 3.2. Exchange of Warrants. Warrants entitling the Registered
Owner to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/Debentures].
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
SECTION 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
SECTION 3.4. Registration of Transfer; Restrictions on Transfers. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________, __________ or at any other place that is designated
by the Company as an office
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for registration of transfer by the Registered Owner or such Registered Owner's
executors, administrators or other legal representatives or attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Agent and upon compliance with such reasonable requirements as the Agent and the
Company may prescribe. Any Warrants tendered for registration of transfer shall
be surrendered to the Agent.
SECTION 3.5. Notice to Warrantholders. Unless herein otherwise
expressly provided, any notice to be given hereunder to Warrantholders shall be
deemed to be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
SECTION 4.1. Method of Exercise of Warrants. The Registered Owner of
any Warrant may exercise the right thereby to purchase [Notes/Debentures] by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its
Warrants, a completed and executed Notice of Intent to Exercise
in the form thereof set forth in Annex I to each Warrant (a "Notice of
Intent to Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise Form
in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
The items described in the foregoing clauses (a) and (b) shall be
deemed received when an actual copy or a facsimile thereof is received by the
Agent. Each Warrant shall be deemed to be surrendered only upon personal
delivery thereof to or, if sent by mail or other means of transmission, upon
receipt thereof by, the Agent at the office specified in this Section 4.1. Each
Warrant shall be deemed exercised as of the first Business Day on which all of
the foregoing conditions are satisfied with respect to such Warrant. The first
day on which the Warrants may be exercised is ________________, ____________,
___. The Company acknowledges that the Registered Owners of the Warrants are not
required under any circumstances to take any other actions in order to exercise
their Warrants.
SECTION 4.2. Effect of Exercise of Warrants. Upon surrender and
payment of the Exercise Price by the Registered Owner of any Warrant in
accordance with Section 4.1, the
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[Notes/Debentures] so purchased shall be deemed to have been issued and the
person or persons to whom such [Notes/Debentures] are to be issued shall be
deemed to have become the Registered Owner or owners of such [Notes/Debentures]
on the [Exercise Date].
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of [Notes/Debentures] not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
SECTION 4.3. Partial Exercise of Warrants. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase (Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant. In the event of any purchase of a principal amount of
[Notes/Debentures] less than the principal amount which can be purchased
pursuant to a Warrant, the Registered Owner thereof upon exercise thereof prior
to the Time of Expiry shall, in addition, be entitled to receive forthwith a new
Warrant in respect of the balance of the principal amount of [Notes/Debentures]
which such Registered Owner was entitled to purchase pursuant to the surrendered
Warrant and which were not then exercised. The Company shall not be responsible
for any taxes which may be payable in connection with the issuance of such new
Warrant.
SECTION 4.4. Expiration of Warrants. After the Time of Expiry, all
rights under any Warrant in respect of which the right of purchase herein and
therein provided for shall not theretofore have been exercised pursuant to
Section 4.1 shall cease and terminate and such Warrant shall become void and of
no effect and all rights of the Registered Owner thereof under this Warrant
Agreement shall cease and terminate as of such termination; provided that such
Registered Owner's rights under this Warrant Agreement with respect to actions
occurring prior to such termination shall remain in full force. After the Time
of Expiry, each Registered Owner of any Warrants shall return any unexercised
Warrants to the Agent for cancelation in accordance with Section 4.5 of this
Agreement.
SECTION 4.5. Cancellation of Surrendered Warrants. All Warrants
surrendered to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall
forthwith be canceled by the Agent. All Warrants canceled or required to be
canceled under this or any other provision of this Agreement may be destroyed by
or under the direction of the Agent and the Agent shall furnish the Company with
a destruction certificate identifying the Warrants so destroyed and the
principal amount of [Notes/Debentures] which could have been purchased pursuant
to each.
SECTION 4.6. Accounting and Recording. The Agent shall forthwith
account and remit to the Company with respect to Warrants exercised and
immediately forward to the Company (or into an account or accounts of the
Company with the bank or trust company designated by the Company for that
purpose) all monies received by the Agent on the purchase of [Notes/Debentures]
through the exercise of Warrants. All such monies, and any [Notes/Debentures] or
other instruments, from time to time received by the Agent shall be
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received in trust for, and shall be segregated and kept apart by the Agent in
trust for, the Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price
and the number of [Notes/Debentures] reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
SECTION 5.1. Issuance of [Notes/Debentures]. The Company covenants
that so long as any Warrants remain Outstanding it will cause the
[Notes/Debentures] from time to time paid for pursuant to the Warrants in the
manner herein provided to be duly issued and delivered in accordance with the
Warrants and the terms hereof.
SECTION 5.2. Corporate Existence of the Company; Consolidation,
Merger, Sale or Transfer. The Company covenants that so long as any of the
Warrants are Outstanding, it will maintain its existence, will not dissolve,
sell or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving , resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
SECTION 5.3. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange of Warrants. So long as any of the Warrants shall remain
Outstanding, the Company covenants that it will maintain an office or agency in
_________, where the Warrants may be presented for registration, exchange and
transfer as in this Agreement provided, and where notices and demands to or upon
the Company in respect of the Warrants or of this Agreement may be served, and
where the Warrants may be presented for exchange for [Notes/Debentures] as
provided herein.
SECTION 5.4. Appointment to Fill a Vacancy in the Office of Agent. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default. The term "Event of Default" whenever
used herein with respect to any Warrant shall mean any one of the following
events:
(a) Failure by the Company to deliver the [Notes/Debentures] in
exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform in any
material respect any of the covenants or agreements on its part in the
Warrants or in this Agreement specifically contained for the benefit of
the Warrantholders, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Agent, or to the
Company and the Agent by the Registered Owners of not less than 25% in
principal amount of the Warrants at the time Outstanding under this
Agreement a written notice specifying such failure and stating that such is
a "Notice of Default" hereunder.
SECTION 6.2. Suits by Warrantholders. All or any of the rights
conferred upon the Registered Owner of any Warrant by the terms of such Warrant
and/or this Agreement may be enforced by the Registered Owner of such Warrants
by appropriate legal proceedings but without prejudice to the right which is
hereby conferred upon the Agent to proceed in its own name to enforce each and
all of the provisions herein contained for the benefit of the Registered Owners
of the Warrants from time to time Outstanding.
SECTION 6.3. Remedies Not Waived; Enforcement Expense. No delay or
failure on the part of the Registered Owners of Warrants or the Agent to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such Registered Owner's or Agent's, as the case may be, rights, powers
and remedies. The Company agrees to pay all costs, expenses and fees, including
all reasonable attorneys' fees, which may be incurred by a Registered Owner in
enforcing or attempting to enforce its rights thereunder and hereunder following
the occurrence and during the continuance of any Event of Default hereunder,
whether the same shall be enforced by suit or otherwise.
SECTION 6.4. Incorporators, Stockholders, Officers and Directors of
Company are Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of this Agreement, or of any Warrant, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
14
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the obligations hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
SECTION 7.1. Amendments Without Consent of Registered Owners of
Warrants. This Agreement and the terms and conditions of the Warrants may be
amended by the Company and the Agent, without the consent of any Registered
Owner of Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of the
Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the Company,
(c) to cure any ambiguity or correcting or supplementing any provision
contained herein or in the Warrants which may be defective or inconsistent
with any other provisions contained herein or in the Warrants,
(d) if deemed appropriate by the Company or required by law, to
evidence the permitted succession of another corporation to the Company and
the assumption by such successor of the covenants and obligations of the
Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or questions
arising under this Agreement or the Warrants which shall not adversely
affect the interests of the Registered Owners of the Warrants in any
material respect.
SECTION 7.2. Amendments with Consent of Registered Owners of Warrants.
This Agreement, the terms and conditions of the Warrants and the covenants
contained in either may also be modified or amended by the Company and the Agent
and past defaults thereunder or future compliance therewith by the Company may
be waived either with the written consent of the Registered Owners of not less
than a majority in aggregate principal amount of the [Notes/Debentures] at the
time outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the aggregate principal amount of the [Notes/Debentures] at the
time outstanding are present or represented, of a resolution by the Registered
Owners of not less than 75% in aggregate principal amount of the Outstanding
Warrants present or represented at the meeting; provided that no such
modification, amendment or waiver may, without the consent or affirmative vote
of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver [Notes/Debentures] in
exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise
Dates or the Expiry Date with respect to any Warrant, or change the coin or
currency in which any Warrant is
15
exercisable for [Notes/Debentures] or impair the right to institute suit
for the enforcement of any rights of any Registered Owner of a Warrant or
(b) Reduce the percentage in principal amount of the Outstanding
Warrants, the consent of which Registered Owners is required for any
modification or amendment to this Agreement or to the terms and conditions
of or covenants contained in this Agreement or in the Warrants or for any
waiver of compliance therewith or
(c) modify any of the provisions of this Section 7.2 except to provide
that certain other provisions of this Agreement or the terms and conditions
of the Warrants cannot be modified, amended or waived without the consent
of the Registered Owner of each Outstanding Warrant affected thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
SECTION 7.3. Binding Nature of Amendments; Notice. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
ARTICLE VIII
MEETINGS
SECTION 8.1. Meetings of Registered Owners of Warrants. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement or the Warrants to be
made, given or taken by Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of
Warrants for any purpose specified herein to be held at such time and at such
place in ______ or __________ as the Agent shall determine. Notice of every
meeting of Registered Owners of Warrants, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, by mail to each registered Owner at its address as it
appears on the Register, not less than 21 nor more than [45] days prior to the
date fixed for the meeting. In
16
case at any time the Company or the Registered Owners of at least 25% in
aggregate principal amount of the Outstanding Warrants shall have requested the
Agent to call a meeting of the Registered Owners of Warrants for any purpose, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Agent shall not have mailed notice of such meeting
within 14 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Registered Owners of Warrants in the amount previously specified, as the case
may be, may determine the time and the place in _______ or for such meeting and
may call such meeting for such purposes by giving notice thereof as provided
herein.
To be entitled to vote at any meeting of Registered Owners of
Warrants, a Person shall be a registered Owner of Outstanding Warrants. The
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Warrants shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of the Registered Owners of Warrants, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 5
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 5 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in this Section 8.1 with respect to an original meeting,
except that such notice need be given only once not less than 3 days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of the
principal amount of the Outstanding Warrants which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Warrants shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Any meeting of
Registered Owners of Warrants at which a quorum is present may be adjourned from
time to time by a vote as hereinafter provided in this Section 8.1, and the
meeting may be held as so adjourned without further notice. At a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid,
any resolution and all matters shall be effectively passed or decided if passed
or decided by persons entitled to vote the lesser of (a) a majority in aggregate
principal amount of Outstanding Warrants or (b) 75% in aggregate principal
amount of Outstanding Warrants represented and voting at such meeting.
The Agent may make such reasonable regulations as it may deem
advisable for any meeting of Registered Owners of Warrants in regard to proof of
the holding of Warrants and such other matters concerning the conduct of the
meeting as it shall deem appropriate. The Agent shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or Registered Owners of Warrants as provided
herein, in which case the Company or the Registered Owners calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and permanent secretary of the meeting shall be elected by
note of the persons entitled to vote a majority in aggregate principal amount of
the Outstanding Warrants represented at the meeting. The chairman of the meeting
shall have no right to vote, except as a Holder of Warrants.
17
SECTION 8.2. Record of Meetings. A record, at least in triplicate, of
the proceedings of each meeting of Registered Owners of Warrants shall be
prepared, and one such copy shall be delivered to the Company and the Agent. The
copy delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
SECTION 9.1. Appointment of Agent. The Company hereby appoints, at
present having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
SECTION 9.2. Acceptance of Appointment By Agent; Limitations of Duties
of Agent. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed upon with
the Company for all services rendered by it, and the Company agrees
promptly to pay such compensation and to reimburse the Agent for its
reasonable out-of-pocket expenses (including, without limitation, the
reasonable compensation of its counsel) incurred by it in connection with
the services rendered by it hereunder. The Company also agrees to indemnify
the Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with its acting as such Agent hereunder, including the
costs and expenses of defending against any claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and does
not assume any obligations or relationship of agency or trust for or with
any of the Registered Owners of the Warrants.
(c) The Agent may consult with one or more counsel (who may also be
counsel to the Company), and, in the absence of bad faith, the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in the good faith
reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company
reasonably believed by the Agent to be genuine and to have been signed by
the proper persons.
18
(e) The Agent and its officers, directors and employees may become the
owner of, or acquire any interest in, any Warrants, with the same rights
that it or they would have if it were not the Agent hereunder, may engage
or be interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or body
of Registered Owners of the Warrants or holders of other obligations of the
Company as freely as if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in the
Agent's certificates of authentication) shall be taken as the statements of
the Company, and the Agent assumes no responsibility for their correctness.
The Agent makes no representation as to the validity or sufficiency of this
Agreement or the Warrants, provided that the Agent shall not be relieved of
its duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the Company of
the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only such
duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 9.3. Agent Required. The Company agrees that, until all
Warrants (i) shall have been delivered to the Agent for cancellation or (ii)
have become null and void because of the passage of the Expiry Date, there shall
at all times be a Agent hereunder which shall be a corporation doing business in
the United States and which alone or with its affiliates has a combined capital
and surplus of at least $[___,000,000].
SECTION 9.4. Resignation and Removal of Agent; Appointment of
Successor. The Agent may at any time resign by giving written notice (in
accordance with Section 10.1 hereof) to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be less than [90] days
after the receipt of such notice by the Company unless the Company agrees to
accept less notice. Upon receipt of such notice of resignation, the Company
shall promptly act to appoint a successor Agent. The Agent may be removed at any
time by the Company by delivering written notice thereof specifying such removal
and the date when it is intended to become effective. Any resignation or removal
of the Agent shall take effect upon the date of the appointment by the Company
as hereinafter provided of a successor and the acceptance of such appointment by
such successor.
In case at any time the Agent shall resign, or shall be removed, or
shall become incapable of acting or shall be adjudged as bankrupt or insolvent,
or if a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its
19
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor agent, eligible as aforesaid, shall be appointed by the
Company.
Upon the appointment as aforesaid of a successor agent and acceptance
by it of such appointment, the Agent so superseded shall cease to be the Agent
hereunder. If no successor Agent shall have been so appointed by the Company and
shall have accepted appointment as hereinafter provided, then the Registered
Owners of a majority in aggregate principal amount of the Outstanding Warrants,
on such Holders' behalf and on behalf of all others similarly situated may
petition any court of competent jurisdiction for the appointment of a successor
Agent.
Any successor Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
SECTION 9.5. Merger, Conversion, Consolidation or Succession to
Business of Agent. Any corporation into which the Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Agent shall be a
party, or any corporation succeeding to all or substantially all the assets and
business of the Agent, shall be the successor to the Agent hereunder, provided
such corporation shall be otherwise eligible under this Article VII, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered,
by the Agent then in office, any successor by merger, conversion or
consolidation to such authenticating Agent may adopt such authentication and
deliver the Warrants so authenticated with the same effect as if such successor
Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. All notices or demands hereunder upon the
Company or the Agent may be electronically communicated or hand delivered or
sent by overnight courier, addressed to any party hereto as provided in this
Section 10.1.
All communications intended for the Company shall be sent to:
20
Viacom Inc.
1515 Broadway
New York, NY 10036
Attention:
Fax Number: (212) ___________
All communications intended for the Agent shall be sent to:
Agent-Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a day on which commercial banks are
open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for all purposes, if given, made or filed in writing with
the Agent in accordance with the provisions of this Section 10.1.
SECTION 10.2. Day Not a Business Day. If any date on which a payment
is to be made, notice given or other action taken hereunder is not a Business
Day, then such payments, notice or other action shall be made, given or taken on
the next succeeding business day in such place, and in the case of any payment,
no interest shall accrue for the delay.
SECTION 10.3. Currency. All amounts herein are expressed in [United
States Dollars/Specified Currency].
SECTION 10.4. Governing Law. This Agreement and the Warrants shall be
construed in accordance with the laws of New York, without regard to principles
of conflicts of law.
21
SECTION 10.5. Limitation of Rights to Parties and Registered Owners of
Warrants. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
SECTION 10.6. Separability of Invalid Provisions. In case any one or
more of the provisions contained in this Agreement or in the Warrants shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
SECTION 10.7. No Waiver of Rights. A failure or delay in exercising
any right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
SECTION 10.8. Execution in Several Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 10.9. Article and Section Headings. The headings or titles of
the several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
SECTION 10.10. Successor and Assigns. All the covenants and agreements
in this Agreement contained by or on behalf of the Company or the Agent shall
bind their respective successors and assigns, whether so expressed or not.
22
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
VIACOM INC.
By_________________________________
AGENT NAME, as Agent
By_________________________________
Exhibit 4.12
FORM OF
STANDARD STOCK WARRANT AGREEMENT
- --------------------------------------------------------------------------------
VIACOM INC.
STANDARD PREFERRED STOCK WARRANT
AGREEMENT PROVISIONS
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Article 1
---------
Issuance, Execution and Delivery of Warrant Certificates
--------------------------------------------------------
Section 1.1 Issuance of Warrant Certificates.............................................................1
Section 1.2 Execution and Delivery of Warrant Certificates...............................................2
Section 1.3 Registration and Countersignature............................................................3
Article 2
---------
Warrant Price, Duration and Exercise of Warrant Certificates
------------------------------------------------------------
Section 2.1 Warrant Price................................................................................4
Section 2.2 Duration of Warrant Certificates.............................................................4
Section 2.3 Exercise of Warrant Certificates.............................................................5
Article 3
---------
Other Provisions Relating to Rights of Holders of Warrant Certificates
----------------------------------------------------------------------
Section 3.1 No Rights as Securityholders Conferred by Warrant Certificates...............................7
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates....................................7
Section 3.3 Holder of Warrant Certificate May Enforce Rights.............................................8
Section 3.4 Call of Warrants by the Company..............................................................8
Section 3.5 Optional Reduction of Warrant Price..........................................................9
Section 3.6 Reservation of Shares........................................................................9
Section 3.7 Obtaining of Governmental Approvals and Stock Exchange Listings.............................10
Section 3.8 Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants........................................................................11
Section 3.9 Fractional Warrants and Fractional Shares...................................................16
Section 3.10 Notices to Warrantholders..................................................................17
i
Article 4
---------
Exchange and Transfer of Warrant Certificates
---------------------------------------------
Section 4.1 Exchange and Transfer.......................................................................19
Section 4.2 Treatment of Holders of Warrant Certificates................................................21
Section 4.3 Cancellation of Warrant Certificates........................................................21
Article 5
---------
Concerning the Warrant Agent
----------------------------
Section 5.1 Warrant Agent...............................................................................21
Section 5.2 Conditions of Warrant Agent's Obligations...................................................22
Section 5.3 Registration and Appointment of Successor Warrant Agent.....................................25
Article 6
---------
Miscellaneous
-------------
Section 6.1 Supplements and Amendments..................................................................28
Section 6.2 Notices and Demands to the Company and Warrant Agent........................................28
Section 6.3 Addresses...................................................................................28
Section 6.4 Delivery of Prospectus......................................................................29
Section 6.5 Obtaining of Governmental Approvals.........................................................29
Section 6.6 Persons Having Rights under Warrant Agreement...............................................29
Section 6.7 Headings....................................................................................30
Section 6.8 Counterparts................................................................................30
Section 6.9 Inspection of Agreement.....................................................................30
Section 6.10 Governing Law..............................................................................30
Section 6.11 Successors.................................................................................30
Section 6.12 Termination................................................................................30
ii
From time to time, Viacom Inc., a Delaware corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase shares of the Company's
Preferred Stock, $0.01 par value ("Shares"). The standard provisions set forth
herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case may
be, terms defined in the Warrant Agreement are used herein as therein defined
and terms defined herein are used in the Warrant Agreement as herein defined.
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. Each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase such numbers of Shares as are set forth in the Warrant
Agreement. The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of
the Board of Directors of the Company or any duly authorized committee thereof
or established in one or more warrant agreements supplemental hereto, prior to
the issuance of any Warrants: the designation of such Warrants; if the Warrants
are issued together as a unit with any other securities of the Company, the date
after which the Warrants shall be freely tradable separately from such other
securities
(the "Distribution Date"); if the Company may at its option or under
circumstances described therein provide for an earlier Distribution Date; the
expiration date, pursuant to Section 2.2; the exercise price and any form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4; the limitations, if any, upon the
Reduced Warrant Price and the Reduced Warrant Price Period, pursuant to Section
3.5; the circumstances, if any, under which the Exercise Price and the number of
Shares purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment and the manner of making any such
adjustment.
Section 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, and in
each case shall be dated as of the date of issuance thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the Warrant Certificate may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with (i)
any law or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, its Chief
Operating Officer, its President, its Chief Financial Officer, a Vice President
or its Treasurer and attested by its Secretary or Assistant Secretary. Such
2
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly delivered hereunder.
If any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered to the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company. Any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such persons was not an officer.
Section 1.3 Registration and Countersignature. The Warrant
Agent shall, upon receipt of Warrant Certificates, duly executed on behalf of
the Company, countersign the Warrant Certificates evidencing Warrants to
purchase the number of Shares set forth in the Warrant Agreement and shall
deliver such Warrant Certificates to the appropriate person or
3
entity upon the order of the Company. After the original issuance of the Warrant
Certificates, the Warrant Agent shall countersign a Warrant Certificate only if
the Warrant Certificate is issued in exchange or substitution for, or in
connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided. The Warrant
Certificates shall not be valid for any purpose unless so countersigned.
The Warrant Agent's countersignature on all Warrants shall be
in substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_________________________________
Authorized Signatory
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANT CERTIFICATES
Section 2.1 Warrant Price. The exercise price of each Warrant
and any other form of consideration other than lawful money of the United States
of America by which the exercise price may be paid shall be as set forth in the
Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Shares upon exercise of the Warrants is referred to in
this Agreement as the "Warrant Price" and is payable in full at the time of
exercise.
Section 2.2 Duration of Warrant Certificates. Warrant
Certificates may be exercised in whole at any time, and in part from time to
time, during the period set forth in the Warrant Agent (the "Expiration Date").
Each Warrant Certificate not exercised on or before the
4
close of business on the Expiration Date shall become void, and all rights of
the holder thereunder and under this Agreement shall cease.
Section 2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 2.1, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Shares as to which the Warrant Certificate is
exercised, to the Warrant Agent at its corporate trust office at the address set
forth in the Warrant Agreement. The payment must specify the name of the holder
and the number of Warrants exercised by such holder. Warrants will be deemed to
have been exercised upon receipt by the Warrant Agent of the Warrant Price and
the Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the
Company. In either case, the Warrant Agent shall advise the Company by telex or
telecopy at the end of each day as to the Warrant Certificates
5
that have been exercised and the amount of moneys deposited to its account or
the type and amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is entitled
upon such exercise, (iii) delivery of Warrant Certificates evidencing the
balance, if any, of the Warrants remaining after such exercise and (iv) such
other information as the Company shall reasonably require.
(c) As soon as practicable after receipt of payment of the
Warrant Price and the Warrant Certificate properly completed and duly executed
at the corporate trust office of the Warrant Agent, the Company shall issue or
deliver, upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as maybe directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant
Certificate evidencing the number of Warrants remaining unexercised shall be
issued if sufficient time remains prior to the Expiration Date.
(d) The Company will pay all documentary stamp taxes attributable to the initial
issuance of Warrants and of Shares upon the exercise of Warrants; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue of any Warrant
Certificates or any certificates for Shares in a name other than the registered
holder of a Warrant Certificate surrendered upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such certificates unless
or
6
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.1 No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a stockholder of the Company, including the right to receive the
payment of dividends on or vote the Shares.
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of such security or
indemnity as may be required by them to save each of them harmless, and, in the
case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost, stolen
or destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and for a like number of Warrants. Upon the issuance of any new
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expense (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and
7
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall constitute an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) any and all
other rights or remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
Section 3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the holder of any
Shares or the holder of any other Warrant Certificate, may, in his or her own
behalf and for his or her own benefit, enforce, and may institute and maintain
any action or proceeding against the Company to enforce or otherwise in respect
of, his or her right to exercise his or her Warrant Certificate in the manner
provided in his or her Warrant Certificate and in his or her Agreement.
Section 3.4 Call of Warrants by the Company. If so provided in
the Warrant Agreement, the Company shall have the right to call and repurchase
any or all Warrants at the price (the "Call Price") and on or after the date
(the "Call Date") and upon the terms (the "Call Terms") as shall be established
from time to time in or pursuant to the Warrant Agreement before the issuance of
such Warrants, or to resolutions of the Board of Directors of the Company.
Notice of such Call Price, Call Date and Call Terms shall be given to registered
holders of Warrants in writing by the Company or the Warrant Agent.
8
Section 3.5 Optional Reduction of Warrant Price. Subject to
the limits, if any, established from time to time by the Board of Directors of
the Company or in the Warrant Agreement, the Company shall have the right, at
any time or from time to time, voluntarily to reduce the then current Warrant
Price to such amount (the "Reduced Warrant Price") and for such period or
periods of time, which may be through the close of business on the Expiration
Date (the "Reduced Warrant Price Period"), as may be deemed appropriate by the
Board of Directors of the Company. Notice of any such Reduced Warrant Price and
Reduced Warrant Price Period shall be given to registered holders of Warrants in
writing by the Company or the Warrant Agent. After the termination of the
Reduced Warrant Price Period, the Warrant Price shall be such Warrant Price that
would have been in effect had there been no reduction in the Warrant Price
pursuant to the provisions of this Section 3.5.
Section 3.6 Reservation of Shares. For the purpose of enabling it
to satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Preferred Stock, the number of
Shares deliverable upon the exercise of all outstanding Warrants, and the
transfer agent for the shares is hereby irrevocably authorized and directed at
all times to reserve such number of authorized and unissued or treasury shares
of Preferred Stock as shall be required for such purpose. The Company will keep
a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding
9
Warrants, and the Company will supply such transfer agent with duly executed
stock certificates for such purpose.
Before taking any action that would cause an adjustment
pursuant to Section 3.7 reducing the Exercise Price below the then par value (if
any) of the Shares issuable upon exercise of the Warrants, the Company will take
any corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of
the Warrants will, upon issuance in accordance with the terms of this Agreement,
be fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
Section 3.7 Obtaining of Governmental Approvals and Stock
Exchange Listings. So long as any Warrants remain outstanding, the Company will
take all necessary steps (a) to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and to make
filings under federal and state securities acts and laws, which may be or become
requisite in connection with the issuance, sale, transfer and delivery of the
Warrant Certificates, the exercise of the Warrants and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of Warrants, and (b) to
have the shares of Stock immediately upon their issuance upon exercise of
Warrants, (i) listed on each national securities exchange on which the Preferred
Stock is then listed or (ii) if the Preferred Stock is not then listed on any
national securities exchange, listed for quotation on the NASD Automated
Quotations System ("Nasdaq")
10
National Market ("Nasdaq National Market") or such other over-the-counter
quotation system on which the Stock may then be listed.
Section 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 3.8.
(a) If the Company shall (i) pay a dividend on its capital
stock (including Preferred Stock in shares of Stock, (ii) subdivide its
outstanding shares of Preferred Stock (iii) combine its outstanding shares of
Preferred Stock into smaller number of shares of Preferred Stock or (iv) issue
any shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of Shares or other securities of the Company which such holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior to
the happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (a) shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Preferred Stock (except as provided in paragraph (a)
above or paragraph (h) below), any holder of Warrants upon exercise thereof
shall be entitled to receive, in lieu of the Preferred Stock to
11
which he or she would have become entitled upon exercise immediately prior to
such reorganization or reclassification, the shares (of any class or classes) or
other securities or property of the Company that he or she would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his or her Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 3.8
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Warrant Price between or among shares
of classes of capital stock), to the end that this Section 3.8 (including the
adjustments of the number of shares of Preferred Stock or other securities
purchasable and the Warrant Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof,
no adjustment in the number of Shares purchasable hereunder shall be required
unless such adjustment would require an increase or decrease of at least one
percent (1%)in the number of Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of this
paragraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the
nearest cent and to the nearest one- hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to
12
issue additional Warrants in substitution for an adjustment in the number of
Shares as provided in paragraph (f), the Exercise Price payable upon exercise of
each Warrant shall be adjusted by multiplying such Exercise Price immediately
prior to such adjustment by a fraction, of which the numerator shall be the
number of Shares purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of Shares
so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of
Stock" shall mean (i) the class of stock designated as the Preferred Stock of
the Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, of from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter the number of such other shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraphs (a) through
(d), inclusive, above, and the provisions of Section 2.1, 2.2, 2.3, 3.6, 3.7(a)
and 3.10, with respect to the Shares, shall apply on like terms to any such
other shares.
(f) The Company may elect, on or after the date of any
adjustment required by paragraphs (a) through (b) of this Section 3.8, to adjust
the number of Warrants in substitution for an adjustment in the number of Shares
purchasable upon the exercise of a Warrant. Each of the Warrants outstanding
after such adjustment of the number of Warrants shall be exercisable for the
same number of shares as immediately prior to such adjustment. Each Warrant held
of
13
record prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest hundredth) obtained by dividing
the Warrant Price in effect prior to adjustment of the Warrant Price by the
Warrant Price in effect after adjustment of the Warrant Price. The Company shall
notify the holders of Warrants in the same manner as provided in the first
paragraph of Section 3.10, of its election to adjust the number of Warrants,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Exercise Price is adjusted or any day thereafter. Upon each adjustment of
the number of Warrants pursuant to this paragraph (f) the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Warrants on such record date Warrant Certificates evidencing, subject to Section
3.9, the additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Warrant Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1.3 and Article 4 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(g) Except as provided in paragraph (a) of this Section 3.8,
no adjustment in respect of any dividends shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of
14
the property of the Company as an entirety or substantially as
an entirety, the Company or such successor or purchasing corporation, as the
case may be, shall execute with the Warrant Agent an agreement that each holder
of a Warrant shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
or she would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3.8. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness or any
provisions contained in any such agreement relating either to the kind or amount
of shares of stock or other securities or property receivable upon exercise of
Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any
such agreement.
(i) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same price
and number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
15
Section 3.9 Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant Certificates or
to distribute Warrant Certificates that evidence fractional Warrants. In lieu of
such fractional Warrants, there shall be paid to the registered holder of the
Warrant Certificates with regard to which such fractional Warrants would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a full Warrant. For purposes of this Section 3.9, the
current market value of a Warrant shall be the closing price of one Warrant (as
determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date on which such fractional Warrant would have been otherwise
issuable.
(b) Notwithstanding any adjustment pursuant to this Section
3.9 in the number of Shares purchasable upon the exercise of a Warrant, the
Company shall not be required to issue fractions of Shares upon exercise of the
Warrants or to distribute certificates which evidence fractional Shares. In lieu
of fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Preferred Stock. For purposes of this Section 3.9, the
current market value of a share of Preferred Stock shall be the closing price of
a share of Preferred Stock (as determined pursuant to paragraph (c) below) for
the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale
price, regular way, or, if no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such day, in either case as
reported in the principal consolidated transaction reporting
16
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Warrants or Stock, as the case may be, is not listed
or admitted to trading on such exchange, as reported on the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Warrants or Preferred
Stock, respectively, is listed or admitted to trading, or if the Warrants or
Preferred Stock, as the case may be, is not listed or admitted to trading on any
national securities exchange, as reported on Nasdaq National Market or, if the
Warrants or Stock, as the case may be, is not listed or admitted to trading on
the Nasdaq National Market, as reported on Nasdaq.
Section 3.10 Notices to Warrantholders. Upon any adjustment of
the number of Shares purchasable upon exercise of each Warrant, the Warrant
Price or the number of Warrants outstanding, the Company within 20 calendar days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a
firm of independent public accountants of recognized standing selected by the
Company (who may be the regular auditors of the Company) setting forth the
Warrant Price and either the number of Shares purchasable upon exercise of each
Warrant or the additional number of Warrants to be issued for each previously
outstanding Warrant, as the case may be, after such adjustment and setting forth
in reasonable detail the method of calculation and the facts upon which such
adjustment was made, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to each
of the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register written notice of such adjustments by first
class mail, postage prepaid. Where appropriate, such notice may be given in
advance and included as part of the notice required to be mailed under the other
provisions of this Section 3.10.
17
The Company shall cause written notice of any later
Distribution Date, any later Expiration Date, any Call Price, Call Date and
Call Terms and any Reduced Exercise Price and Reduced Exercise Price Period, as
the case may be, to be given as soon as practicable to the Warrant Agent and to
each of the registered holders of the Warrant Certificates by first class mail,
postage prepaid, at such holder's address appearing on the Warrant Register. In
addition to the written notice referred to in the preceding sentence, the
Company shall make a public announcement in a daily morning newspaper of general
circulation in New York City of such earlier Distribution Date, such later
Expiration Date, such Call Price, Call Date and Call Terms and such Reduced
Exercise Price and Reduced Exercise Price Period, as the case may be, at least
once prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Preferred Stock or make any
distribution (other than a cash dividend) to the holders of is
shares of Preferred Stock, or
(b) the Company shall offer to the holders of its shares of
Preferred Stock any additional shares of Preferred Stock or
securities convertible into shares of Preferred Stock or any right
to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation, merger
or sale of all or substantially all of its property, assets and
business as an entirety),
18
the Company shall cause written notice of such event to be
filed with the Warrant Agent and shall cause written notice of such
event to be given to each of the registered holders of the Warrant
Certificates as such holder's address appearing on the Warrant
Register, by first class mail, postage prepaid, and make a
public announcement in a daily newspaper of general circulation in
New York City of such event, such giving of notice and publication
to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a
record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution,
liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be.
The failure to give the notice required by this Section 3.10 or any
defect therein shall not affect the legality or validity of any
distribution, right, warrant, dissolution, liquidation or winding up
or the vote upon or any other action taken in connection therewith.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.1 Exchange and Transfer. Upon surrender at the
corporate trust office of the Warrant Agent, Warrant Certificates evidencing
Warrants may be exchanged for Warrant Certificates in other denominations
evidencing such Warrants and the transfer of Warrants may be registered in whole
or in part; provided that such other Warrant Certificates shall evidence the
same aggregate number of Warrants as the Warrant Certificates surrendered for
exchange or
19
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly completed and duly endorsed and duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed (under the Medallion Program) by (a) a bank or trust company, (b) a
broker or dealer that is a member of the Nasdaq or (c) a member of a national
securities exchange and accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to
the Company and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but the Company
may require payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are surrendered for
exchange or registration of transfer, an authorized officer of the Warrant Agent
shall mutually countersign and deliver to the person or persons entitled thereto
a Warrant Certificate or Warrant Certificate duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificates surrendered for
such exchange or registration of transfer.
20
Section 4.2 Treatment of Holders of Warrant Certificates.
Every holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and with every subsequent holder of
such Warrant Certificate that, until the transfer of the Warrant Certificate is
registered on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
Section 4.3 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time, or otherwise dispose of, canceled Warrant Certificates in manner
satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent. The Company hereby appoints the
Warrant Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority
21
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
Section 5.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following (to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it
will take any corporate action that may be reasonably necessary in
order to fulfill its obligations under this Agreement, and the
Warrant Certificates, and that it will not take any action that
would materially impair its ability to perform its obligations under
this Agreement and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and
to reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including reasonable counsel fees) incurred by the Warrant Agent in
connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as the Warrant Agent
hereunder, as well as the reasonable costs and expenses of defending
against any claim of liability in the premises.
22
(c) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the
Warrant Agent is acting solely as an agent of the Company, and the
Warrant Agent does not assume any obligation or relationship of
agency or trust for or with any of the owners or holders of the
Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the opinion of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificate, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers,
directors and employees may buy, sell or deal in any of the Shares
or other securities of the Company and may become the owner of, or
acquire any interest in, any Warrant Certificates, with the same
rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, they may
engage or be interested in any financial or other transaction with
the Company and may act on, or as depositary, trustee or agent for,
any committee or body of holders of the Shares or other obligations
of the Company as freely as if it were not the Warrant Agent.
23
(g) No Liability for Interest. Except as set forth in the
Warrant Agreement, the Warrant Agent shall not be under any
liability for interest on any moneys or other consideration at any
time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement
or any of the Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except the Warrant
Agent shall be responsible for any representations of the Warrant
Agent herein and for its countersignature on the Warrant
Certificates), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth, but no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application or
by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have not duty or responsibility in case of any
default by the Company in the
24
performance of its covenants or agreements contained in the Warrant
Certificates or in the case of the receipt of any written demand
from a holder or a Warrant Certificate with respect to such default,
including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demands
upon the Company.
(k) Instructions. The Warrant Agent is hereby authorized and
directed to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer,
the Secretary or any Assistant Secretary of the Company, and to
apply to such officers for advice or instructions in connection with
its duties, and shall not be liable for any action taken or suffered
to be taken by it in good faith in accordance with instructions of
any such officer or in good faith reliance upon any statement signed
by any one of such officer of the Company with respect to any fact
or matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively
proved and established by such signed statement.
Section 5.3 Registration and Appointment of Successor Warrant
Agent.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that at all times there shall be a
Warrant Agent hereunder until all the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The
25
Warrant Agent may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or removal shall take
effect upon the appointment by the Company, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust company organized and
doing business under the laws of the United States of America or of any State,
in good standing, and authorized under such laws to exercise corporate trust
powers) and the acceptance of such appointment by such successor Warrant Agent.
Upon its resignation or removal, the Warrant Agent shall be entitled to the
payment by the Company of the compensation agreed to under Section 5.2(b) hereof
for, and to the reimbursement of all reasonable out-of-pocket expenses incurred
in connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance
26
with the terms of this Agreement, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be the Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that is shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
27
ARTICLE 6
MISCELLANEOUS
Section 6.1 Supplements and Amendments. This Agreement may be
amended or supplemented from time to time by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein, or in regard to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable,
provided such action shall not adversely affect the interest of the holders of
the Warrant Certificates.
Section 6.2 Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
Section 6.3 Addresses. Any communication to the Warrant Agent
with respect to this Agreement shall be addressed to the address set forth in
the Warrant Agreement, and any such communication to the Company shall be
addressed to the Company at the following address:
Viacom Inc.
1515 Broadway
New York, New York 10036
Attention: [ ]
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
28
Section 6.4 Delivery of Prospectus. If the Company is required
under applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the Shares issued
upon such exercise, a copy of the prospectus.
Section 6.5 Obtaining of Governmental Approvals. The Company
will from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Shares issued upon exercise of the
Warrants or upon the expiration of the period during which the Warrants are
exercisable.
Section 6.6 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates, any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
29
Section 6.7 Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.8 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 6.9 Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
Section 6.10 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
Section 6.11 Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 6.12 Termination. This Agreement shall terminate at
the close of business on the Expiration Date. Notwithstanding the foregoing,
this Agreement will terminate on any earlier date when the Warrants have been
exercised.
30
- --------------------------------------------------------------------------------
EXHIBIT 4.13
FORM OF
VIACOM INTERNATIONAL INC.
PREFERRED STOCK GUARANTEE AGREEMENT
------------------------------------
Dated as of __________, 20__
------------------------------------
Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.......................................................1
ARTICLE II
WAIVER OF EVENTS OF DEFAULT
SECTION 2.1 Events of Default; Waiver.........................................3
ARTICLE III
GUARANTEE
SECTION 3.1 Guarantee.........................................................3
SECTION 3.2 Waiver of Notice..................................................4
SECTION 3.3 Obligations Not Affected..........................................4
SECTION 3.4 Enforcement of Guarantee..........................................4
SECTION 3.5 Guarantee of Payment..............................................4
SECTION 3.6 Subrogation.......................................................5
SECTION 3.7 Reinstatement of Obligations......................................5
SECTION 3.8 Limitation of Guarantor's Liability...............................5
SECTION 3.9 Form of Guarantee.................................................5
ARTICLE IV
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 4.1 Limitation of Transactions........................................6
SECTION 4.2 Subordination.....................................................6
ARTICLE V
TERMINATION
SECTION 5.1 Termination.......................................................6
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Successors and Assigns............................................7
SECTION 6.2 Amendments........................................................7
SECTION 6.3 Notices...........................................................7
SECTION 6.4 Benefit...........................................................8
SECTION 6.5 Governing Law.....................................................8
i
PREFERRED STOCK GUARANTEE AGREEMENT
This PREFERRED STOCK GUARANTEE AGREEMENT, dated as of , 20__ , (the
"Guarantee Agreement") is executed and delivered by Viacom International Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Stock (as defined herein) of
Viacom Inc., a Delaware corporation (the "Issuer").
WHEREAS, pursuant to its Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation"), dated as of , 20__, the
Issuer is authorized to issue up to ____________ shares of [Series ____]
preferred stock (the "Preferred Stock"), of which ______ shares of Preferred
stock are being issued as of the date hereof.
WHEREAS, as incentive for the Holders to purchase Preferred Stock, the
Guarantor desires to irrevocably and unconditionally agree, to the extent set
forth herein, to pay to the Holders of the Preferred Stock the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Stock, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Preferred Stock.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) the masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders; and
1
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Certificate of Designation" refers to the certificate filed by Viacom
Inc. with the Delaware Secretary of State with sets forth the designation,
rights and privileges of the applicable series of Preferred Stock with respect
to which a guarantee is granted hereunder.
"Common Stock" means the common stock of Viacom Inc., a Delaware
corporation.
"Covered Person" means any Holder of Preferred stock.
"Dividends" means the periodic dividends and other payments payable to
Holders of Preferred stock in accordance with the terms of the Preferred Stock
set forth in the applicable Certificate of Designation.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantees" means the guarantees relating to the Preferred Stock to be
issued by Viacom International Inc. as provided in this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Stock, to the
extent not paid or made by the Issuer: (i) the redemption price, including all
accrued and unpaid Dividends to the date of redemption (the "Redemption Price"),
with respect to the Preferred Stock called for redemption by the Issuer and (ii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer, the aggregate of the liquidation amount and all accrued and unpaid
Dividends on the Preferred Stock to the date of payment, to the extent the
Issuer has funds available therefor (the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Stock with respect to which a guarantee is
issued hereunder; provided, however, that in determining whether the holders of
the requisite percentage of Preferred Stock have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Guarantor.
"Majority of the Preferred Stock" means, Holder(s) of outstanding
Preferred Stock voting together as a single class, who are the record owners of
Preferred Stock, whose amount of shares of Preferred Stock represents more than
50% of the amount of all outstanding Preferred Stock.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated
2
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Preferred Stock" has the meaning set forth in the first WHEREAS clause
above.
"Redemption Price" means the amount payable on redemption of the
Preferred Stock in accordance with the terms set forth in the Certificate of
Designation establishing the terms of the Preferred Stock.
"66-2/3% of the Preferred Stock" means, Holder(s) of outstanding
Preferred Stock voting together as a single class who are the record owners of
Preferred Stock whose amount of shares of Preferred Stock represents 66-2/3% or
more of the amount of all outstanding Preferred Stock.
ARTICLE II
WAIVER OF EVENTS OF DEFAULT
SECTION 2.1 Events of Default; Waiver.
(a) Holders of Preferred Stock may by vote of at least a Majority of
the Preferred Stock, on behalf of the Holders of all Preferred Stock waive any
past Event of Default and its consequences. Upon such waiver, any such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
(b) The right of any Holder of Preferred Stock to receive payment of
the Guarantee Payments in accordance with this Guarantee Agreement, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
ARTICLE III
GUARANTEE
SECTION 3.1 Guarantee.
The Guarantor hereby fully and unconditionally guarantees to each
Holder the due and punctual payment of the Redemption Price or Liquidation
Distribution, as applicable, (without duplication of amounts theretofore paid by
the Issuer) when and as the same shall become due and payable, according to the
terms of the Preferred Stock, as set forth in the Certificate of Designation,
regardless of any defense, right of set-off or counterclaim which the Issuer may
3
have or assert. In case of the failure of the Issuer or any successor thereto
punctually to pay any such Redemption Price or Liquidation Distribution, as
applicable, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, as if such payment
were made by the Issuer. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by payment by the Issuer of such amounts to the Holders.
SECTION 3.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 3.3 Obligations Not Affected.
The Guarantor hereby agrees that its obligations under this Guarantee
Agreement 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 Preferred Stock, the
absence of any action to enforce the same, any waiver or consent by the Holder
of any shares of Preferred Stock with respect to any terms thereof, the recovery
of any judgment against the Issuer or any action to enforce the same, or any
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Preferred Stock and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
this Section 3.3.
SECTION 3.4 Enforcement of Guarantee.
Any Holder of Preferred Stock may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer or any other
Person.
SECTION 3.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the: (i) Redemption Price or Liquidation Amount, as applicable, in full by
the Issuer, or (ii) Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) by the Guarantor.
4
SECTION 3.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid by the Guarantor to the
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 3.7 Reinstatement of Obligations.
If any Holder of Preferred Stock is required by any court or otherwise
to return to the Issuer or the Guarantor, or any custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official acting in
relation to the Issuer or the Guarantor, any amount paid to such Holder in
respect of such Preferred Stock, the guarantee issued under this Guarantee
Agreement, to the extend theretofore discharged, shall be reinstated in full
force and effect.
SECTION 3.8 Limitation of Guarantor's Liability.
The Guarantor, and by its acceptance of the Preferred Stock each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any obligations of the Guarantor under the Preferred Stock
Guarantees constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any Unites States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law. To effectuate the foregoing intention, in the event that the obligations of
the Guarantor under this Guarantee Agreement, would, but for this sentence,
constitute a fraudulent transfer or conveyance or violation, then the liability
of the Guarantor under this Guarantee Agreement 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.
SECTION 3.9 Form of Guarantee.
The Guarantees to be endorsed upon the Preferred Stock shall be in
substantially the form set forth in Exhibit A attached hereto, with such
appropriate insertions, omissions, substitutions, and other variations as are
required or permitted hereby, and may include such letters, numbers or other
marks of identification and legends as may be required to comply with the rules
of any securities exchange or as may, consistently herewith, be determined by
the officers executing such Guarantees, as evidenced by their execution of such
Guarantees.
The definitive Guarantees to be endorsed upon the Preferred Stock shall
be printed,
5
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner provided that such
manner is permitted by the rules of any securities exchange on which the
Preferred Stock may be listed, all as determined by the officers executing the
Guarantees, as evidenced by their execution of such Guarantees.
ARTICLE IV
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 4.1 Limitation of Transactions.
So long as any shares of Preferred Stock remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem, purchase, acquire or
make a distribution or liquidation payment with respect to, any of its common
stock or preferred stock or make any guarantee payment with respect thereto if
at such time the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder; provided that (a) the Guarantor
will be permitted to pay accrued dividends (and cash in lieu of fractional
shares) upon the conversion of any preferred stock of the Guarantor as may be
outstanding from time to time, in each case in accordance with the terms of such
stock and (b) the foregoing will not apply to any stock dividends paid by the
Guarantor.
SECTION 4.2 Subordination.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, except those made pari passu or subordinate
by their terms, and (ii) senior to all capital stock now or hereafter issued by
the Guarantor and to any guarantee now or hereafter entered into by the
Guarantor in respect of any of its capital stock. The Guarantor's obligations
under this Guarantee Agreement will rank pari passu with respect to obligations
under other guarantee agreements which it may enter into from time to time to
the extent that such agreements shall be entered into in substantially the form
hereof and provide for comparable guarantees by the Guarantor of payment on
preferred stock issued by Viacom or any of its Affiliates.
ARTICLE V
TERMINATION
SECTION 5.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price of all Preferred stock, or upon
the distribution of Common
6
Stock in exchange for all of the Preferred Stock, or upon full payment of the
amounts payable in accordance with the Certificate of Designation upon
liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to the Preferred Stock or this Guarantee Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assignees, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of shares of the
Preferred Stock then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor in which the resulting entity agrees in
writing to be legally responsible for the guarantees issued under this Guarantee
Agreement, the Guarantor shall not assign its obligations hereunder.
SECTION 6.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than 66-2/3% of the Preferred Stock. The provisions of the
Certificate of Designation concerning meetings of Holders shall apply to the
giving of such approval.
SECTION 6.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Viacom International Inc.
1515 Broadway
New York, NY 10036
Fax Number:
Attention: General Counsel and Secretary
7
(b) if given to any Holder of Preferred Stock, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 6.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Stock.
SECTION 6.5 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS).
8
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
VIACOM INTERNATIONAL INC.
By:
------------------------
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of , 20__, personally
appeared _________of Viacom International Inc. known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of such corporation for the purposes
and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF , 20__.
[SEAL]
- --------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires:_____________
9
EXHIBIT A
FORM OF GUARANTEE
For value received, Viacom International Inc., a Delaware corporation
(the "Guarantor") hereby fully and unconditionally guarantees to each Holder the
due and punctual payment of the Redemption Price or Liquidation Distribution, as
applicable, (without duplication of amounts theretofore paid by the Issuer) when
and as the same shall become due and payable, according to the terms of the
Preferred Stock, as set forth in the Certificate of Designation, regardless of
any defense, right of set-off or counterclaim which the Issuer may have or
assert. In case of the failure of the Issuer or any successor thereto punctually
to pay any such Redemption Price or Liquidation Distribution, as applicable, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, as if such payment were made by the
Issuer. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
payment by the Issuer of such amounts to the Holders.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
The Guarantor hereby agrees that its obligations under this Guarantee
Agreement 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 Preferred Stock, the
absence of any action to enforce the same, any waiver or consent by the Holder
of any shares of Preferred Stock with respect to any terms thereof, the recovery
of any judgment against the Issuer or any action to enforce the same, or any
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Preferred Stock and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
this Section 3.3.
Any Holder of Preferred Stock may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer or any other
Person.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the: (i) Redemption Price or Liquidation Amount, as applicable, in full by
the Issuer, or (ii) Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) by the Guarantor.
10
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid by the Guarantor to the
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
If any Holder of Preferred Stock is required by any court or otherwise
to return to the Issuer or the Guarantor, or any custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official acting in
relation to the Issuer or the Guarantor, any amount paid to such Holder in
respect of such Preferred Stock, the guarantee issued under this Guarantee
Agreement, to the extend theretofore discharged, shall be reinstated in full
force and effect.
The Guarantor, and by its acceptance of the Preferred Stock each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any obligations of the Guarantor under the Preferred Stock
Guarantees constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any Unites States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law. To effectuate the foregoing intention, in the event that the obligations of
the Guarantor under this Guarantee Agreement, would, but for this sentence,
constitute a fraudulent transfer or conveyance or violation, then the liability
of the Guarantor under this Guarantee Agreement 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.
All terms used in this Guarantee that are defined in the Preferred
Stock Guarantee Agreement to which this Guarantee relates shall have the
meanings assigned to them in such Preferred Stock Guarantee Agreement.
This Guarantee shall not be valid or obligatory for any purpose unless
and until the Preferred Stock to which this Guarantee relates is duly
authorized, issued and outstanding.
Reference is made to the Preferred Stock Guarantee Agreement for
further provisions with respect to this Guarantee.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS).
11
EXHIBIT 5.1
[Letterhead of Shearman & Sterling]
May 31, 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-3 (the "Registration Statement") being
filed with the Securities and Exchange Commission (the "Commission") relating to
the offering from time to time, pursuant to Rule 415 of the General Rules and
Regulations of the Commission promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), of the following securities of the Company with
an aggregate offering price of up to $5,000,000,000 or the equivalent thereof in
one or more foreign currencies: (i) senior debt securities, including the
guarantees endorsed thereon, if any, issued under the 1995 Senior Indenture (as
defined below) (the "1995 Senior Debt"); (ii) senior debt securities, including
the guarantees endorsed thereon, if any, issued under the 2001 Senior Indenture
(as defined below) (the "2001 Senior Debt"); (iii) senior subordinated debt
securities, including the guarantees endorsed thereon, if any, issued under the
2001 Senior Subordinated Indenture (as defined below) (the "2001 Senior
Subordinated Debt", and together with the 1995 Senior Debt and 2001 Senior Debt,
the "Debt Securities"); (iv) preferred stock (the "Preferred Stock"), including
the guarantees related thereto, if any (the "PS Guarantees"); (v) warrants to
purchase Debt Securities (the "Debt Warrants"); (vi) warrants to purchase
Preferred Stock (the "PS Warrants"); and (vii) common stock (the "Common Stock")
which may be issued upon conversion of the Debt Securities or Preferred Stock.
The Debt Securities, the Preferred Stock, the Warrants and the Common Stock are
collectively referred to as the "Securities".
The 1995 Senior Debt will be issued in one or more series pursuant
to 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 thereto, 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 as
of January 17, 2001, as 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 amended and supplemented, the "1995 Senior
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 (the "1995 Senior Trustee"). The 2001 Senior Debt will be issued in one
or more series pursuant to a senior indenture (the "2001 Senior Indenture") to
be entered into between the Company, the Guarantor and The Bank of New York, as
trustee (the "2001 Senior Trustee"). The 2001 Senior Subordinated Debt will be
issued in one or more series pursuant to a senior subordinated indenture (the
"2001 Senior Subordinated Indenture") to be entered into between the Company,
the Guarantor and The Bank of New York, as trustee (the "Senior Subordinated
Trustee"). The Debt Warrants will be issued under one or more warrant agreements
(each, a "Debt Warrant Agreement"), each to be entered into between the Company
and, if applicable, the Guarantor and a financial institution identified therein
as the warrant agent (each, a "Debt Warrant Agent"). The PS Warrants will be
issued under one or more warrant agreements (each, a "PS Warrant Agreement"), to
be entered into between the Company and a financial institution identified
therein as the warrant agent (each, a "PS Warrant Agent").
In our capacity as counsel to the Company we have examined (i) the
Registration Statement, (ii) the 1995 Senior Indenture filed as an exhibit to
the Registration Statement, (iii) the form of 2001 Senior Indenture filed as an
exhibit to the Registration Statement, (iv) the form of 2001 Senior Subordinated
Indenture filed as an exhibit to the Registration Statement, (v) the forms of
Warrant Agreement filed as exhibits to the Registration Statement and (vi) the
originals, or copies identified to our satisfaction, of such corporate records
of Viacom, certificates of public officials, officers of Viacom and other
persons, and such other documents, agreements and instruments as we have deemed
necessary as a basis for the opinions hereinafter expressed.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of Viacom and others.
Our opinions set forth below are limited to the laws of the State
of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States and we do not express any opinion herein
concerning any other laws.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The 1995 Senior Indenture has been duly authorized by the
Company, the Guarantor and the 1995 Senior Trustee, and constitutes a valid and
legally binding obligation of the Company and the Guarantor enforceable against
the Company and the Guarantor, as the case may be, in accordance with its terms.
2. The 1995 Senior Debt has been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii) the 1995
Senior Debt has been duly executed by the Company and, if applicable, the
Guarantor, and authenticated by the 1995 Senior Trustee in accordance with the
1995 Senior Indenture and delivered to and paid for by the purchasers thereof,
the 1995 Senior Debt will constitute valid and legally binding obligations of
the Company and, if applicable, the Guarantor, enforceable against the Company
and the Guarantor, as the case may be, in accordance with the terms thereof and
will be entitled to the benefits of the 1995 Senior Indenture.
3. The 2001 Senior Indenture has been duly authorized and, when
duly executed and delivered by the Company and the Guarantor and duly
authorized, executed and delivered by the 2001 Senior Trustee, the 2001 Senior
Indenture will constitute a valid and legally binding obligation of the Company
and the Guarantor, enforceable against the Company and the Guarantor, as the
case may be, in accordance with its terms.
4. The 2001 Senior Debt has been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii) the 2001
Senior Debt has been duly executed by the Company and, if applicable, the
Guarantor, and authenticated by the 2001 Senior Trustee in accordance with the
2001 Senior Indenture and delivered to and paid for by the purchasers thereof,
the 2001 Senior Debt will constitute valid and legally binding obligations of
the Company and, if applicable, the Guarantor, enforceable against the Company
and the Guarantor, as the case may be, in accordance with the terms thereof and
will be entitled to the benefits of the 2001 Senior Indenture.
5. The 2001 Senior Subordinated Indenture has been duly authorized
and, when duly executed and delivered by the Company and the Guarantor and duly
authorized, executed and delivered by the 2001 Senior Subordinated Trustee, the
2001 Senior Subordinated Indenture will constitute a valid and legally binding
obligation of the Company and the Guarantor enforceable against the Company and
the Guarantor, as the case may be, in accordance with its terms.
6. The 2001 Senior Subordinated Debt has been duly authorized and,
when (i) the final terms thereof have been duly established and approved and
(ii) the 2001 Senior Subordinated Debt has been duly executed by the Company
and, if applicable, the Guarantor, and authenticated by the 2001 Senior
Subordinated Trustee in accordance with the 2001 Senior Subordinated Indenture
and delivered to and paid for by the purchasers thereof, the 2001 Senior
Subordinated Debt will constitute valid and legally binding obligations of the
Company and, if applicable, the Guarantor, enforceable against the Company and
the Guarantor, as the case may be, in accordance with the terms thereof and will
be entitled to the benefits of the 2001 Senior Subordinated Indenture.
7. The Debt Warrant Agreements have been duly authorized and, when
duly executed and delivered by the Company and, if applicable, the Guarantor and
duly authorized, executed and delivered by the applicable Debt Warrant Agent,
the Debt Warrant Agreements will constitute valid and legally binding
obligations of the Company and, if applicable, the Guarantor
enforceable against the Company and the Guarantor, as the case may be, in
accordance with their respective terms.
8. The Debt Warrants have been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii)
certificates representing the Debt Warrants have been duly executed by the
Company and, if applicable, the Guarantor and countersigned by the applicable
Debt Warrant Agent in accordance with the applicable Debt Warrant Agreement and
delivered to and paid for by the purchasers thereof, the Debt Warrants will
constitute valid and legally binding obligations of the Company and, if
applicable, the Guarantor enforceable against the Company and the Guarantor, as
the case may be, in accordance with the terms thereof and will be entitled to
the benefits of the applicable Debt Warrant Agreement.
9. The PS Warrant Agreement has been duly authorized and, when
duly executed and delivered by the Company and duly authorized, executed and
delivered by the applicable PS Warrant Agent, the PS Warrant Agreement will
constitute a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms.
10. The PS Warrants have been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii)
certificates representing the PS Warrants have been duly executed by the Company
and countersigned by the applicable PS Warrant Agent in accordance with the
applicable PS Warrant Agreement and delivered to and paid for by the purchasers
thereof, the PS Warrants will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with the terms
thereof and will be entitled to the benefits of the applicable PS Warrant
Agreement.
11. The Preferred Stock has been duly authorized and, (i) when the
final terms thereof have been duly established and approved, (ii) certificates
representing the Preferred Stock have been duly executed by the Company and
delivered to and paid for by the purchasers thereof and (iii) all corporate
action necessary for issuance of the Preferred Stock has been taken, including
the adoption of a Certificate of Designations relating thereto, the Preferred
Stock will be validly issued, fully paid and non-assessable.
12. When the PS Guarantees have been duly authorized and executed
by the Guarantor, the final terms thereof have been duly established and
approved and the PS Guarantees are delivered to and paid for by the purchasers
thereof, the PS Guarantees will constitute valid and legally binding obligations
of the Guarantor enforceable against the Guarantor in accordance with their
terms.
13. The Common Stock has been duly authorized and, when (i) the
final terms thereof have been duly established and approved and (ii)
certificates representing the Common
Stock have been duly executed by the Company and delivered to and paid for by
the purchasers thereof, the Common Stock will be validly issued, fully paid and
non-assessable.
The opinions set forth in paragraphs 1. through 10. and 12. above
are subject, as to enforcement, to (i) bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally, (ii) general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (iii)
provisions of law that require that a judgment for money damages rendered by a
court in the United States be expressed only in United States dollars.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus.
Very truly yours,
EXHIBIT 12.1
VIACOM INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions, except ratios)
HISTORICAL
-----------------------------------------------------------------------------------------
Three Months
Ended Year Ended December 31,
March 31, 2001
---------------- --------------------------------------------------------------------
2000 1999 1998 1997 1996
---- ---- ---- ---- ----
Earnings (loss) before income taxes $148.4 $560.6 $843.9 $137.3 $1,178.5 $410.1
Add:
Interest expense 261.0 842.5 461.0 631.2 790.7 839.7
Capitalized interest amortized 0.7 2.2 5.7 11.5 4.1 5.9
1/3 of rental expense 79.4 298.2 213.8 186.8 225.0 178.4
Adjustment for fifty-
percent-owned affiliates 13.4 32.5 (49.0) (51.5) (178.1) 23.6
Preferred stock dividends-
majority owned subsidiaries 0.0 0.0 0.0 0.0 0.0 0.0
---------------- --------------------------------------------------------------------
Adjusted Earnings $502.9 $1,736.0 $1,475.4 $915.3 $2,024.2 $1,457.7
================ ====================================================================
Fixed charges:
Interest expense $261.0 $842.5 $461.0 $631.2 $791.7 $844.2
1/3 of rental expenses 79.4 298.2 213.8 186.8 225.0 178.4
Preferred stock dividends-
majority owned subsidiaries 0.0 0.0 0.0 0.0 0.0 0.0
---------------- --------------------------------------------------------------------
Total fixed charges $340.4 $1,140.7 $674.8 $818.0 $1,016.7 $1,022.6
================ ====================================================================
Ratio of earnings to fixed charges 1.5x 1.5x 2.2x 1.1x 2.0x 1.4x
================ ====================================================================
PRO FORMA
----------------------------------------
Three Months
Ended Year Ended
March 31, 2001 December 31, 2000
----------------------------------------
Earnings (loss) before income taxes $121.2 $231.6
Add:
Interest expense 262.3 1,037.2
Capitalized interest amortized 0.7 2.2
Adjustment for fifty-
percent-owned affiliates 13.4 32.5
1/3 of rental expense 79.5 299.2
----------------- -----------------
Adjusted Earnings $477.1 $1,602.7
================= =================
Fixed charges:
Interest expense $262.3 $1,037.2
1/3 of rental expenses $79.5 $299.2
----------------- -----------------
Total fixed charges $341.8 $1,336.4
================= =================
Ratio of earnings to fixed charges 1.4x 1.2x
================= =================
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 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.
PricewaterhouseCoopers LLP
New York, New York
May 29, 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-3 registration statement of Viacom Inc. and Viacom International
Inc.
KPMG LLP
New York, New York
May 29, 2001
1
EXHIBIT 24.1
POWER OF ATTORNEY
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director of VIACOM
INC. (the "Company") hereby constitutes and appoints Michael D. Fricklas and
Mark C. Morril and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign (1) a
registration statement or statements on Form S-3, or such other form as may be
recommended by counsel, to be filed with the Securities and Exchange Commission
(the "Commission"), and any and all amendments and post-effective amendments
thereto, and any and all post-effective amendments to registration statements or
statements on Form S-3 previously filed with the Commission, and supplements to
the Prospectus contained therein, and any and all instruments and documents
filed as a part of or in connection with the said registration statements or
amendments thereto or supplements or amendments to such Prospectus, covering, in
each case, the offering and issuance of debt securities of Viacom Inc. and (2)
any registration statements, reports and applications relating to such
securities to be filed by the Company with the Commission and/or any national
securities exchanges under the Securities Exchange Act of 1934, as amended, and
any and all amendments thereto, and any and all instruments and documents filed
as part of or in connection with such registration statements or reports or
amendments thereto; granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully for all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that the said
attorney-in-fact and agent, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th day of
December, 2000.
/s/ GEORGE S. ABRAMS
---------------------------
George S. Abrams
/s/ DAVID R. ANDELMAN
---------------------------
David R. Andelman
/s/ GEORGE H. CONRADES
---------------------------
George H. Conrades
/s/ PHILIPPE P. DAUMAN
---------------------------
Philippe P. Dauman
/s/ WILLIAM H. GRAY III
---------------------------
William H. Gray III
/s/ MEL KARMAZIN
---------------------------
Mel Karmazin
/s/ JAN LESCHLY
---------------------------
Jan Leschly
/s/ DAVID T. MCLAUGHLIN
---------------------------
David T. McLaughlin
/s/ LESLIE MOONVES
---------------------------
Leslie Moonves
/s/ BRENT D. REDSTONE
---------------------------
Brent D. Redstone
/s/ SHARI REDSTONE
---------------------------
Shari Redstone
/s/ FREDERIC V. SALERNO
---------------------------
Frederic V. Salerno
/s/ WILLIAM SCHWARTZ
---------------------------
William Schwartz
/s/ IVAN SEIDENBERG
---------------------------
Ivan Seidenberg
/s/ PATTY STONESIFER
---------------------------
Patty Stonesifer
/s/ ROBERT D. WALTER
---------------------------
Robert D. Walter
EXHIBIT 24.2
POWER OF ATTORNEY
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 true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign (1) a registration statement
or statements on Form S-3, or such other form as may be recommended by counsel,
to be filed with the Securities and Exchange Commission (the "Commission"), and
any and all amendments and post-effective amendments thereto, and any and all
post-effective amendments to registration statements or statements on Form S-3
previously filed with the Commission, and supplements to the Prospectus
contained therein, and any and all instruments and documents filed as a part of
or in connection with the said registration statements or amendments thereto or
supplements or amendments to such Prospectus, covering, in each case, the
offering and issuance of debt securities of Viacom Inc. and (2) any registration
statements, reports and applications relating to such securities to be filed by
the Company with the Commission and/or any national securities exchanges under
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and any and all instruments and documents filed as part of or in
connection with such registration statements or reports or amendments thereto;
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully for all intents and purposes as he 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 23rd day of
May, 2001.
/s/ KEN MILLER
---------------------------
KEN MILLER
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
VIACOM INC.
(Exact name of obligor as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1515 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip code)
--------------------------
2001 Senior Debt Securities
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
- 2 -
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 24th day of May, 2001.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT
- 4 -
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
2000, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $3,083,720
Interest-bearing balances........................... 4,949,333
Securities:
Held-to-maturity securities......................... 740,315
Available-for-sale securities....................... 5,328,981
Federal funds sold and Securities purchased
under agreements to resell.......................... 5,695,708
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned income,
allowance, and reserve............................ 35,979,345
Trading Assets......................................... 11,912,448
Premises and fixed assets (including capitalized
leases)............................................. 763,241
Other real estate owned................................ 2,925
Investments in unconsolidated subsidiaries and
associated companies................................ 183,836
Customers' liability to this bank on acceptances
outstanding......................................... 424,303
Intangible assets...................................... 1,378,477
Other assets........................................... 3,823,797
-----------
Total assets........................................... $74,266,429
===========
- 5 -
LIABILITIES
Deposits:
In domestic offices................................. $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,437,916
Demand notes issued to the U.S.Treasury................ 100,000
Trading liabilities.................................... 2,049,818
Other borrowed money:
With remaining maturity of one year or less......... 1,279,125
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 427,110
Subordinated notes and debentures...................... 1,646,000
Other liabilities...................................... 4,604,478
-----------
Total liabilities...................................... $67,824,765
===========
EQUITY CAPITAL
Common stock........................................... 1,135,285
Surplus................................................ 1,008,775
Undivided profits and capital reserves................. 4,308,492
Net unrealized holding gains (losses) on
available-for-sale securities....................... 27,768
Accumulated net gains (losses) on cash flow hedges 0
Cumulative foreign currency translation adjustments.... ( 38,656)
-----------
Total equity capital................................... 6,441,664
-----------
Total liabilities and equity capital................... $74,266,429
===========
- 6 -
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
- --------------------------------------------------------------------------------
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
VIACOM INC.
(Exact name of obligor as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1515 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip code)
--------------------------
2001 Senior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
- 2 -
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 24th day of May, 2001.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT
- 4 -
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
2000, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin.......................................... $3,083,720
Interest-bearing balances........................... 4,949,333
Securities:
Held-to-maturity securities......................... 740,315
Available-for-sale securities....................... 5,328,981
Federal funds sold and Securities purchased under
agreements to resell................................ 5,695,708
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................ 36,590,456
LESS: Allowance for loan and
lease losses...................................... 598,536
LESS: Allocated transfer risk
reserve........................................... 12,575
Loans and leases, net of unearned income,
allowance, and reserve............................ 35,979,345
Trading Assets......................................... 11,912,448
Premises and fixed assets (including capitalized
leases)............................................. 763,241
Other real estate owned................................ 2,925
Investments in unconsolidated subsidiaries and
associated companies................................ 183,836
Customers' liability to this bank on acceptances
outstanding......................................... 424,303
Intangible assets...................................... 1,378,477
Other assets........................................... 3,823,797
-----------
Total assets........................................... $74,266,429
===========
- 5 -
LIABILITIES
Deposits:
In domestic offices................................. $28,328,548
Noninterest-bearing................................. 12,637,384
Interest-bearing.................................... 15,691,164
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 27,920,690
Noninterest-bearing................................. 470,130
Interest-bearing.................................... 27,450,560
Federal funds purchased and Securities sold under
agreements to repurchase............................ 1,437,916
Demand notes issued to the U.S.Treasury................ 100,000
Trading liabilities.................................... 2,049,818
Other borrowed money:
With remaining maturity of one year or less......... 1,279,125
With remaining maturity of more than one year
through three years............................... 0
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 427,110
Subordinated notes and debentures...................... 1,646,000
Other liabilities...................................... 4,604,478
-----------
Total liabilities...................................... $67,824,765
===========
EQUITY CAPITAL
Common stock........................................... 1,135,285
Surplus................................................ 1,008,775
Undivided profits and capital reserves................. 4,308,492
Net unrealized holding gains (losses) on
available-for-sale securities....................... 27,768
Accumulated net gains (losses) on cash flow hedges 0
Cumulative foreign currency translation adjustments.... ( 38,656)
-----------
Total equity capital................................... 6,441,664
-----------
Total liabilities and equity capital................... $74,266,429
===========
- 6 -
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and 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
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi )
Alan R. Griffith ) Directors
Gerald L. Hassell )
- --------------------------------------------------------------------------------
EXHIBIT 25.3
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, New York 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, 2001 - 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 24st day
of May, 2001.
CITIBANK, N.A.
By /s/ P. DeFelice
-------------------------
P. DeFelice
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