INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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1.1 - Form of Underwriting Agreement.
4.1 - Form of Indenture relating to the Senior Debt Securities.
4.2 - Form of Indenture relating to the Senior Subordinated Debt Securities.
4.3 - Restated Certificate of Incorporation of Viacom Inc. (incorporated by
reference to Exhibit 3(a) to the Annual Report on Form 10-K of Viacom
Inc. for the fiscal year ended December 31, 1992, as amended by Form
10-K/A Amendment No. 1 dated November 29, 1993 and as further amended
by Form 10-K/A Amendment No. 2 dated December 9, 1993) (File No.
1-9553).
4.4 - Certificate of Amendment of Restated Certificate of Incorporation of
Viacom Inc. (incorporated by reference to Exhibit 3.2 to Registration
Statement on Form S-4 filed by Viacom Inc.) (File No. 33-55271).
4.5 - By-Laws of Viacom Inc. (incorporated by reference to Exhibit 3.3 to
Registration Statement on Form S-4 filed by Viacom Inc.) (File No. 33-
13812).
5 - Opinion of Shearman & Sterling as to the validity of the Offered
Securities.
12 - Computation of Ratio of Earnings to Fixed Charges and Ratio of
Earnings to Combined Fixed Charges and Preferred Stock Dividends.
23.1 - Consent of Price Waterhouse LLP as to financial statements of Viacom
Inc. and Viacom International Inc.
23.2 - Consent of Ernst & Young LLP as to financial statements of Paramount
Communications Inc.
23.3 - Consent of Arthur Andersen LLP as to financial statements of
Blockbuster Entertainment Corporation.
23.4 - Consent of Price Waterhouse LLP as to financial statements of
Paramount Communications Inc.
23.5 - Consent of Shearman & Sterling (included in their opinion filed as
Exhibit 5).
24 - Powers of Attorney.*
25 - Form T-1 Statement of Eligibility of The First National Bank of
Boston, Trustee.
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* All Powers of Attorney were previously filed, except the Power of Attorney
of Susan C. Gordon which is filed herewith.
Exhibit 1.1
VIACOM INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(OFFERED SECURITIES)
, 1995
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From time to time, Viacom Inc., a Delaware corporation (the
"Company"), and Viacom International Inc., a Delaware corporation (the
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"Guarantor"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein will be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
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The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Capitalized terms used
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but not defined herein shall have the meaning ascribed thereto in the
applicable Underwriting Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
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to the Offered Securities, and has filed with, or transmitted for filing to,
or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") specifically
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relating to the Offered Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term Registration
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Statement means the registration statement as amended to the date of this
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Agreement. The term Base Prospectus means the prospectus included in the
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Registration Statement. The term Prospectus means the Base Prospectus
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together with the Prospectus Supplement. The term preliminary prospectus
----------------------
means a preliminary prospectus supplement specifically relating to the
Offered Securities together with the Base Prospectus. As used herein, the
terms "Registration Statement," "Base Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Base Prospectus by the Company or the Guarantor with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act").
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1. Representations and Warranties. The Company represents and
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warrants to each of the Underwriters that:
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(a) No stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the Company's knowledge, are threatened by the Commission.
(b) The Company and the Guarantor each has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
Delaware, and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus.
(c) All the outstanding shares of capital stock of the Guarantor
have been duly authorized and validly issued, are fully paid and
nonassessable, and are wholly owned by the Company, free and clear of
any lien, adverse claim, security interest, equity or other encumbrance,
except as described in the Prospectus and except for such liens, adverse
claims, security interests or equity or other encumbrances that are in
the aggregate immaterial to the Company and its subsidiaries taken as a
whole.
[(d) The Indenture dated as of among the Company, the
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Guarantor and The First National Bank of Boston, as trustee (the
"Trustee") relating to the Debt Securities [(the "Senior Debt
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Indenture")] [(the "Senior Subordinated Debt Indenture")], has been duly
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qualified under the Trust Indenture Act of 1939, as amended (the "TIA"),
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has been duly authorized, executed and delivered by the Company and the
Guarantor and, assuming the due authorization, execution and delivery by
the Trustee, is a valid and binding agreement of the Company and the
Guarantor, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered in
a proceeding in equity or at law). The Company has filed an application
for the purposes of determining the eligibility of the Trustee under the
Indenture to act under subsection (a) of Section 310 of the TIA in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the TIA (the "Trustee Application")[, and the
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Company has been informed by the Commission that the Commission has
declared the Trustee Application effective].
[(e)[1] The Debt Securities have been duly authorized by the
Company and the guarantees (the "Guarantees") endorsed on such Debt
Securities have been duly authorized by the Guarantor and, when executed
and authenticated in accordance with the provisions of the relevant
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, the Debt
Securities and the Guarantees will be entitled to the benefits of the
[relevant] Indenture, and will be valid and legally binding obligations
of the Company and the Guarantor, respectively, in each case enforceable
in accordance with their respective
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terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether
considered in a proceeding in equity or at law).]
[(e)[2] The Offered Securities have been duly authorized by the
Company and, when delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly
issued, fully paid and nonassessable.] [The authorized capital stock of
the Company and the Offered Securities conform as to legal matters to
the descriptions thereof contained in the Prospectus.]
(f) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(g) The execution and delivery by the Company and the Guarantor
of, and the performance by the Company and the Guarantor of their
respective obligations under, this Agreement, [the Senior Debt
Indenture], [ the Senior Subordinated Debt Indenture], [the certificate
of designation relating to the Offered Securities,] and the Offered
Securities will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or the Guarantor
or any material agreement or other instrument to which the Company or
the Guarantor is a party or known to the Company to be binding upon the
Company or the Guarantor or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or the Guarantor, except, in any such case, for such contraventions as
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(h)(i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain, any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph (h)
do not apply to
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statements or omissions in the Registration Statement or the Prospectus
or supplement or amendment thereto based upon information concerning
any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
[(i) The Offered Securities have been approved for listing, upon
official notice of issuance, on the American Stock Exchange.]
[(j) The Company and each of its subsidiaries have complied in all
material respects with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida).]
2. Public Offering. The Company is advised by the Manager that
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the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Offered Securities are set forth in the
Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities
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shall be made by certified or official bank check or checks payable to the
order of the Company in New York Clearing House funds at the time and place
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of [certificates in
definitive form for] the Offered Securities, registered in such names and in
such denominations as the Manager shall request in writing not less than two
full business days prior to the date of delivery, with any transfer taxes
payable in connection with the issuance and delivery of the Offered
Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
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Underwriters hereunder are subject to the following conditions:
(a) (i) There shall not have occurred any change in the financial
condition, earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus,
that, in the reasonable judgment of the Manager, is material and adverse
and that makes it, in the good faith judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and
(ii) The representations and warranties of the Company
contained in this Agreement shall be true and correct as of the Closing
Date and the Company and the Guarantor each shall have complied in all
material respects with all of the agreements and satisfied in all
material respects all of the conditions on its part to be performed or
satisfied on or before the Closing Date, and the Manager shall have
received a certificate, dated the Closing Date and signed by executive
officers of the Company, to that effect.
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(b) The Manager shall have received on the Closing Date (i) an
opinion of the General Counsel or special securities counsel of the
Company, to the effect set forth in Exhibit A hereto, (ii) an opinion of
outside counsel to the Company, to the effect set forth in Exhibit B
hereto and (iii) an opinion of outside counsel to the Manager, in form
and substance reasonably satisfactory to the Manager, with respect
to such matters as the Manager may reasonably request, in each case
dated the Closing Date.
(c) The Manager shall have received on the date of this Agreement
and on the Closing Date a letter or letters, dated such date, from the
Company's independent auditors (and, if appropriate in order to provide
the following statements and information, from other independent public
accountants), containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
[(d) The Trustee Application shall have become effective.]
5. Covenants of the Company and the Guarantor. In further
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consideration of the agreements of the Underwriters contained herein, the
Company and the Guarantor, jointly and severally, covenant as follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits and all amendments thereto
but excluding documents incorporated by reference therein) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without any exhibits and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any supplements and amendments thereto or
to the Registration Statement as the Manager may reasonably request.
(b) To furnish to the Manager a copy of each amendment (except any
amendment by incorporation by reference) or supplement to the
Registration Statement or the Prospectus immediately prior to the time
of the filing thereof.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to notify the
Manager thereof and prepare, file with the
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Commission and furnish, at its own expense, to the Underwriters either
amendments or supplements to the Prospectus, so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law; provided, however, that any costs
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incurred by the Company pursuant to this paragraph (c) or paragraph (a)
of this Section 5 after three months from the date of the applicable
Underwriting Agreement shall be at the expense of the Underwriters and
shall be reimbursed by the Manager as incurred by the Company.
(d) To cooperate with the Manager and counsel for the Underwriters
to qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualifications for one year
after the date of the Underwriting Agreement and to pay all expenses
(including filing fees and the reasonable fees and disbursements of
counsel), against receipt of detailed invoice therefor, in connection
with such qualification.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder covering a
twelve-month period beginning on the first day of the Company's first
full fiscal quarter next following the date of the Underwriting
Agreement.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell or contract to sell any securities of the Company
substantially similar to the Offered Securities (other than (i) the
Offered Securities, (ii) commercial paper issued in the ordinary course
of business, (iii) pursuant to stock option plans and other similar
employee benefit programs or (iv) pursuant to the terms of securities
outstanding or contracts existing on the date of the Underwriting
Agreement), without the prior written consent of the Manager, which
consent will not be unreasonably withheld.
(g) To advise you, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Offered Securities for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose, and it will promptly use its reasonable
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
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[(h) To use its reasonable efforts to have the Offered Securities
[if Preferred Stock] listed, subject to notice of issuance, on the
American Stock Exchange prior to or concurrently with the Closing Date.]
6. Indemnification and Contribution. The Company agrees to
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indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (collectively, "Losses") caused by
any untrue statement or allegedly untrue statement of a material fact
contained in the Registration Statement or in any amendment thereto as to
which such Losses relate, or in any preliminary prospectus or the Prospectus
(or in any amendment thereof or supplement thereto as to which such losses
relate, if the Company shall have furnished any amendments thereof or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this indemnity
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does not apply to any Losses to the extent arising out of any untrue
statement or omission or allegedly untrue statement or omission based upon
information furnished to the Company in writing by any Underwriter through
the Manager expressly for use in the Registration Statement (or any amendment
thereto), or in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); provided further, that the foregoing indemnity with
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respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such Losses purchased Offered
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such Losses; provided
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further, that the foregoing indemnity contained in this paragraph with
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respect to the Prospectus shall not inure to the benefit of any Underwriter,
or to the benefit of any person who controls such Underwriter, in respect of
any Losses asserted by a person who purchased Offered Securities from such
Underwriter and arising out of or based upon an untrue statement or omission
or alleged untrue statement or omission in the Prospectus, if such untrue
statement or omission or alleged untrue statement or omission is corrected
in an amendment or supplement to the Prospectus and if, having previously
been furnished by or on behalf of the Company with copies of the Prospectus
as so amended or supplemented, such Underwriter thereafter fails to deliver
or cause to be delivered such Prospectus as amended or supplemented prior to
or concurrently with the sale of Offered Securities to the person asserting
such Losses.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only to the extent arising out of
information furnished to the Company by such Underwriter in writing through
the Manager
8
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
-----------------
indemnity may be sought (the "indemnifying party") in writing and the
------------------
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the reasonable attorneys' fees and expenses in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one separate firm
(in addition to one local counsel for all proceedings or related proceedings
in any jurisdiction) for all such indemnified parties and that all such
reasonable fees and expenses shall be reimbursed as they are incurred. Such
firm or local counsel shall be designated in writing by the Manager, in the
case of parties indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party in respect
of any Losses referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Underwriters from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
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above but also the relative fault of the Company and of the Underwriters in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters in connection with the offering
of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Offered Securities
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or allegedly untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the Losses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or allegedly
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in
proportion to the respective [principal amounts/number of shares] of Offered
Securities purchased by each of such Underwriters and not joint.
The indemnity and contribution provisions contained in this Section
6 and the representations and warranties and covenants of the Company and/or
the Guarantor contained herein shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its directors or officers or any person controlling the Company
and (ii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination
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in the Manager's absolute discretion, by notice given to the Company, if (a)
after the execution and
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delivery of the Underwriting Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or
by, as the case may be, [the American Stock Exchange], (ii) trading of any
securities of the Company shall have been suspended on the [American Stock
Exchange], (iii) a general moratorium on commercial banking activities in New
York shall have been declared by either Federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the good faith judgment of the Manager, is material and adverse and
(b) in the case of any of the events specified in clauses (a)(i) through
(iv), such event, singly or together with any other such event, makes it, in
the good faith judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If on the Closing Date any one or
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more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase on such date, and the aggregate
amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount or number, as the case may be, of the
Offered Securities to be purchased on such date, the other Underwriters shall
be obligated severally in the proportions that the amount or number, as the
case may be, of Offered Securities set forth opposite their respective names
above bears to the aggregate amount or number, as the case may be, of Offered
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
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that in no event shall the amount or number, as the case may be, of Offered
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Offered Securities without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Offered Securities and the aggregate amount
or number, as the case may be, of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount or number,
as the case may be, of Offered Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Offered Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the
Company shall have the right to postpone the Closing Date but in no event for
longer then seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Manager because of any
failure by the Company or the Guarantor to comply in all material respects
with the terms or to fulfill any of the material conditions of this
Agreement, or if the sale of the Offered
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Securities provided for herein is not consummated on the Closing Date because
any condition to the obligations of the Underwriters set forth in Section 4
hereof is not satisfied, then the Company will reimburse the Underwriters,
severally, upon demand for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder against
receipt of a detailed invoice therefor. Termination pursuant to Section 7
hereof shall not require reimbursement pursuant to this paragraph.
9. Miscellaneous. The Underwriting Agreement may be signed in
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any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
10. Headings. The headings of the sections of this Agreement have
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been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
UNDERWRITING AGREEMENT
, 199
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VIACOM INC.
VIACOM INTERNATIONAL INC.
c/o Viacom Inc.
1515 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
-------
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
------------
Viacom Inc. (the "Company") proposes to issue and sell [[Principal Amount]
-------
aggregate [initial offering price/principal amount] of [Full title of Debt
Securities], guaranteed by Viacom International Inc. (the "Guarantor") (the
---------
"Debt Securities")]/[Number of shares] of [Full Title of Preferred Stock (the
---------------
"Preferred Stock")]. The Debt Securities and the Preferred Stock are also
---------------
hereinafter referred to as the "Offered Securities". [All references herein,
------------------
and in the document entitled Viacom Inc. Underwriting Agreement Standard
Provisions (Offered Securities) described in the penultimate paragraph
hereof, to the Debt Securities or the Offered Securities include the
guarantees of the Guarantor described above in this paragraph whenever the
context permits.]
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the [principal amount] [number
of shares] of Offered Securities set forth below opposite their respective
names at a purchase price [of % of the principal amount of Debt
---
Securities[, plus accrued interest, if any, from [Date of Debt Securities] to
the date of payment and delivery]* [$___ per share]:
-------------------
* To be added only if the transaction does not close flat.
2
[Principal Amount of/Number of
Name Shares of] Offered Securities
---- ---------------------------------
[Insert U.S. syndicate list]
Total . . . . . .
===============
Name
----
[Insert international syndicate list]
Total . . . . . .
===============
The Underwriters will pay for the Offered Securities
upon delivery thereof at the Company's offices at ____ a.m. (New
York time) on , 199 , or at such other time, not later
----------- -
than 5:00 p.m. (New York time) on 199 , as shall be
---------- -
designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in
the Prospectus dated , 1994, and the Prospectus
-----------
Supplement dated , 199 , including the following:
----------- -
Terms of Debt Securities
Maturity Date: ,
---------- -- -----
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
and commencing
------------------------ ------------- -- --
---------- --' -------
[(Interest accrues from )]*
------------- - '------
-------------------
* To be added only if the transaction does not close flat.
3
Form and Denomination:
Ranking: The Debt Securities will be [senior/senior
subordinated] indebtedness of the Company issued
under the Indenture dated as of
-----------------
among the Company, Viacom International Inc.
-
and , as
--------------------------------
trustee.
[Other Terms:]
Terms of Preferred Stock:
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __, _________
__, and ______ __, commencing
__________ __, 199_; Dividends
cumulate from ________ __, 199_
Record Dates: __________ __, ________ __, ________ __, and
_______ __
Liquidation Preference: $______ per share
Redemption:
[Other Terms:]
[Add lock up, if any]
All provisions contained in the document entitled Viacom
Inc. Underwriting Agreement Standard Provisions (Offered
Securities) dated , 199 , a copy of which is attached
------ -- -
hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein, except
that [(i)] if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control [and
(ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this
Agreement].
4
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below. This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Very truly yours,
[Manager]
On behalf of themselves and the
other Underwriters named herein
By:
By:
-------------------------------
Name:
Title:
Accepted:
VIACOM INC. VIACOM INTERNATIONAL INC.
By: _______________________ By: ___________________________
Name: Name:
Title: Title:
EXHIBIT A
[FORM OF OPINION OF COMPANY GENERAL COUNSEL]
(i) Each of Viacom and the Guarantor has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would
not have a material adverse effect on Viacom and its subsidiaries
taken as a whole;
(ii) All outstanding shares of capital stock of the
Guarantor have been duly and validly authorized and issued and
have been fully paid and are non-assessable, and all outstanding
shares of such capital stock are owned by Viacom. Viacom has not
granted any security interest in or pledged any of the shares of
capital stock of the Guarantor and, to my knowledge, there exists
no other claims, liens or encumbrances with respect to such
shares.
(iii) The execution and delivery by Viacom and the
Guarantor of, and the performance by Viacom and the Guarantor of
their respective obligations under the Underwriting Agreement,
the [Senior] [Senior Subordinated] Debt Indenture and the Debt
Securities will not contravene (a) any provision of applicable
law (including, without limitation, the Communications Act of
1934, as amended), or (b) the Restated Certificate of
Incorporation of Viacom or the Certificate of Incorporation of
the Guarantor or By-Laws of Viacom or the Guarantor or (c) any
agreement or other instrument to which Viacom or the Guarantor or
any of their respective subsidiaries is a party or which is
binding on Viacom, the Guarantor or any of their respective
subsidiaries, of which I have knowledge after due investigation
or (d) to the best of my knowledge, any judgment, order or decree
of any governmental body, agency or court having jurisdiction
over Viacom or the Guarantor or any of their respective
subsidiaries, except with respect to clauses (c) and (d) any such
contravention which will not have a material adverse effect on
Viacom and its subsidiaries taken as a whole, and no consent,
approval or authorization or order of, or qualification with, any
governmental body or agency (including, without limitation, the
Federal Communications Commission (the "FCC")) is required for
the performance by Viacom or the Guarantor of their respective
obligations under the Underwriting Agreement, the [Senior]
[Senior Subordinated] Debt Indenture and the Debt Securities,
except for such consents as have already been obtained and except
such as may be required by the securities or Blue Sky laws of the
2
various states in connection with the offer and sale of the Debt
Securities by the underwriters;
(iv) The statements in Viacom's Annual Report on Form 10-K
for the year ended December 31, 1994 (the "1994 10-K") under the
caption "Business-Regulation" (appearing on pages I-15 through I-
23 of the 1994 10-K as filed on EDGAR), insofar as such
statements constitute a summary of the legal or governmental
matters, documents or proceedings referred to therein, did not as
of the date of the Underwriting Agreement, and do not, as of the
date hereof, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(v) I do not know of any legal or governmental proceeding
pending or threatened against Viacom or the Guarantor or to which
Viacom or the Guarantor is a party or to which any of the
properties of Viacom or the Guarantor is subject that is required
to be described in the Registration Statement or the Prospectus
and is not so described or of any statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or
filed as required;
(vi) Each document filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Registration Statement or the
Prospectus, when so filed appears on its face to have been
appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder (except for the financial statements
and other financial [and statistical] data included therein, as
to which I have not been requested to express an opinion);
(vii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein (except
for the financial statements and other financial [and statistical]
data included therein or omitted therefrom, as to which I have
not been requested to express an opinion), as of their respective
effective or issue dates, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and regulations
of the Commission thereunder;
No facts have come to my attention that lead me to
believe that the Registration Statement, as of the time the
Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of
the Underwriting Agreement or as of the date hereof, contained or
3
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading. I express no belief with respect
to the financial statements and other financial [and statistical]
data included in the Registration Statement or the Prospectus or
with respect to the Statement of Eligibility on Form T-1 of the
Trustee.
[Any aspects of the foregoing opinions relating to
certain regulatory matters may be the subject of a separate
opinion of special counsel.]
EXHIBIT B
[FORM OF OPINION OF OUTSIDE COUNSEL]
(i) Viacom and the Guarantor each has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
[(ii) The Indenture has been duly qualified under the
Trust Indenture Act and such Indenture, has been duly authorized,
executed and delivered by Viacom and the Guarantor and (assuming
due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of Viacom and the
Guarantor enforceable in accordance with its terms, subject to
(i) any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar law affecting creditors'
rights generally and (ii) the effect of general principles of
equity (regardless of whether considered in a proceeding in
equity or at law)];
[(iii) The Debt Securities [and the guarantees endorsed
thereon] have been duly authorized and executed by Viacom [and
the Guarantor, respectively], and, when the Debt Securities [and
guarantees] have been authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, the Debt Securities [and the guarantees endorsed
thereon] will have been duly issued and will be entitled to the
benefits of the Indenture and will be valid and legally binding
obligations of Viacom [and the Guarantor, respectively, in each
case], enforceable in accordance with its terms, except as the
enforcement thereof my be limited by any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally and except as enforcement
thereof is subject to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law)];
[(iv) The shares of Preferred Stock have been duly
authorized by Viacom and, when executed by Viacom and delivered
to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will have been validly issued,
fully paid and nonassessable];
(v) The Offered Securities conform as to legal matters
to the description thereof contained in the Prospectus, as
amended and supplemented;
(vi) The Underwriting Agreement has been duly
authorized, executed and delivered by Viacom and the Guarantor;
(vii) The Registration Statement and the Prospectus, as
amended or supplemented (except for Exhibit 12 to the
Registration
2
Statement and the financial statements and other
financial [and statistical] data included therein and the
Statement of Eligibility on Form T-1 of the Trustee, as to which
we have not been requested to express and opinion), excluding the
documents incorporated by reference therein, as of their
respective effective or issue dates, appear on their face to have
been appropriately responsive in all material respect to the
requirements of the Securities Act and the rules and regulations
of the Commission thereunder;
(viii) Each document filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Registration Statement or the
Prospectus, as amended or supplemented (except for the financial
statements and other financial [and statistical] data contained
or incorporated by reference therein, or omitted therefrom, as to
which such counsel has not been requested to express an opinion),
when so filed with the Commission, appeared on its face to have
been appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and
(ix) The Registration Statement has become effective
under the Act and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or, to our knowledge, threatened by the Commission;
Such opinion shall also state that, while such counsel
has not verified, and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, such counsel has generally reviewed and discussed
such statements with certain officers and employees of the
Company, with its counsel and auditors and with the
Representatives[s] of the Underwriters, and in the course of such
review and discussions, no facts have come to the attention of
such counsel that lead them to believe that either the
Registration Statement at the time the Registration Statement
became effective, (other than Exhibit 12 and the financial
statements and other accounting information contained therein or
incorporated by reference therein, or omitted therefrom, as to
which such counsel has not been requested to comment) contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus,
the date thereof, (other than the financial statements and other
accounting information contained therein or incorporated by
reference therein, or omitted therefrom, as to which such counsel
has not been requested to comment) contained an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
counsel need express no belief with respect to the financial
statements and
3
other financial [and statistical] data included in
the Registration Statement or the Prospectus or with respect to
the Statement of Eligibility on Form T-1 of the Trustee. [Such
counsel may exclude from the foregoing paragraph matters relating
to federal, state and local regulation of the communications
businesses of Viacom and its subsidiaries.]
Exhibit 4.1
=================================================================
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
---------------------------------------
Indenture
Dated as of ______, 1995
---------------------------------------
Senior Debt Securities
----------------------
=================================================================
VIACOM INTERNATIONAL INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ,1995
---------------------------------------------------
Trust Indenture Indenture
Act Section Section
- ----------------- -------------
Sec. 310(a)(1) . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . 608
Sec. 312(c) . . . . . . . . . . . . . . . 701
Sec. 314(a) . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . 1008(a)
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . 102
Sec. 315(b) . . . . . . . . . . . . . . . 601
Sec. 316(a)(last
sentence) . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 104(e)
Sec. 317(a)(1) . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . 1003
Sec. 318(a) . . . . . . . . . . . . . . . 108
(c) . . . . . . . . . . . . . . . 108
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
-----------------
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE GUARANTOR . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agent Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . 3
Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . 3
Cedel S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request or Company Order . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default Amount . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Euro Security . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 5
ii
Page
----
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantor Request or Guarantor Order . . . . . . . . . . . . . . 5
Guarantor Obligations . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 6
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . 7
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 9
possessions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 9
Principal Property . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 10
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . 10
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 10
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 11
Specified Currency . . . . . . . . . . . . . . . . . . . . . . . 11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
Page
----
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States Person . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Depositary . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 12
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 12
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . 13
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . 13
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 14
SECTION 105. Notices, Etc., to Trustee, Company or Guarantor . . . . 16
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 16
SECTION 107. Language of Notices, Etc . . . . . . . . . . . . . . . . 18
SECTION 108. Trust Indenture Act . . . . . . . . . . . . . . . . . . 18
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . 18
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . 18
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . 18
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . 18
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . 19
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 19
SECTION 115. Submission to Jurisdiction; Appointment of Agent for
Service . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 20
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 21
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . 21
iv
Page
----
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . 22
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . 27
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . 30
SECTION 305. Registration, Registration of Transfer and Exchange . . 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset. . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 308. Optional Extension of Stated Maturity . . . . . . . . . 40
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . 41
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . 43
SECTION 312. Judgments . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . 44
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . 45
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 46
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . 47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . 50
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 506. Application of Money Collected . . . . . . . . . . . . . 51
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 52
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . 53
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . 53
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . 53
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . 53
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . 54
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SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 54
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . 55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . 55
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . 55
SECTION 603. Not Responsible for Recitals or Issuance of Securities . 57
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . 57
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . 57
SECTION 606. Compensation, Reimbursement and Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . 58
SECTION 608. Resignation and Removal; Appointment of Successor . . . 59
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . 60
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . 64
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . 65
SECTION 703. Reports by Company and the Guarantor . . . . . . . . . . 65
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . 66
SECTION 902. Supplemental Indentures with Consent of Holders . . . . 67
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . 69
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 69
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 69
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SECTION 906. Reference in Securities to Supplemental Indentures . . . 69
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest . . 70
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 70
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . 72
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . 73
SECTION 1005. Maintenance of Principal Properties . . . . . . . . . . 74
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . 74
SECTION 1007. Additional Amounts . . . . . . . . . . . . . . . . . . 74
SECTION 1008. Compliance Certificate . . . . . . . . . . . . . . . . 76
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . 76
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 76
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . 77
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . 77
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 78
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . 79
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . 79
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . 80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 81
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . 81
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . 82
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1302. Execution and Delivery of Guarantees . . . . . . . . . 84
SECTION 1303. Limitation of Guarantor's Liability . . . . . . . . . . 84
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ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . 85
SECTION 1402. Repayment of Securities . . . . . . . . . . . . . . . . 85
SECTION 1403. Exercise of Option . . . . . . . . . . . . . . . . . . 85
SECTION 1404. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1405. Securities Repaid in Part . . . . . . . . . . . . . . . 87
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1502. Defeasance and Discharge . . . . . . . . . . . . . . . 88
SECTION 1503. Covenant Defeasance . . . . . . . . . . . . . . . . . . 88
SECTION 1504. Conditions to Defeasance or Covenant Defeasance . . . . 89
SECTION 1505. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions . . . . . . . . . 91
SECTION 1506. Reinstatement . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called . . . . . . . 92
SECTION 1602. Call, Notice and Place of Meetings . . . . . . . . . . 92
SECTION 1603. Persons Entitled to Vote at Meetings . . . . . . . . . 93
SECTION 1604. Quorum; Action . . . . . . . . . . . . . . . . . . . . 93
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1606. Counting Votes and Recording Action of Meetings . . . . 96
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
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SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Exhibit A Forms of Certification. . . . . . . . . . . . . . . . A-1-1
Exhibit A-1 Forms of Certificate to be given by person entitled
to receive bearer security or to obtain interest
payable prior to the exchange date. . . . . . . . . . A-1-1
Exhibit A-2 Form of certificate to be given by Euroclear and Cedel S.A.
INDENTURE, dated as of ____________, 1995, among Viacom Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1515 Broadway, New
York, New York 10036, and Viacom International Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor"), having its principal office at 1515 Broadway, New York, New
York 10036, and The First National Bank of Boston, a national banking
association duly organized and existing under the laws of the United States of
America, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
RECITAL OF THE GUARANTOR
The Guarantor desires with respect to the Securities of certain series
issued hereunder to make the Guarantees provided for herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular and,
pursuant to Section
2
301, any such item may, with respect to any particular series of
Securities, be amended, or modified or specified as being inapplicable;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) except as otherwise herein expressly provided, all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United
States of America, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America from
time to time; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used principally in Article Three are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1007.
"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 Bank" means any agent or agents for Banks from time to time
under any Credit Agreement, or any successor agent or agents thereto.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
3
"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 in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Banks" means the lenders from time to time who are parties to any
Credit Agreement.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors", when used with reference to the Company or the
Guarantor, means either the board of directors, or any duly authorized committee
of that board, of the Company or the Guarantor, as the case may be.
"Board Resolution", when used with reference to the Company or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Capitalized Lease" means any obligation of a Person to pay rent or
other amounts incurred with respect to real property or equipment acquired or
leased by such Person and used in its business that is required to be recorded
as a capital lease in accordance with generally accepted accounting principles
consistently applied as in effect from time to time.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
4
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of any supplemental indenture or Officer's
Certificate, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by one Officer of the Company, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee, at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Indenture is located at 150 Royall
Street, Mail Stop 45-02-15, Canton, Massachusetts 02021, except that with
respect to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corporate agency business shall be
conducted.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company, or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Credit Agreement" means any credit agreement under which the Company
is a borrower, in the principal amount of at least $100 million.
"Default" means any event or condition which is, or after notice or
passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as the operator of the Euro-clear System.
"Euro Security" means any Bearer Security, any Security initially
represented by a Security in temporary global form exchangeable for Bearer
Securities and any Security in permanent global form exchangeable for Bearer
Securities.
5
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank, designated pursuant to Section
301.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantees set forth in Section 1301.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of any supplemental indenture or
Officer's Certificate, and thereafter "Guarantor" shall mean such successor
Person.
"Guarantor Obligations" shall have the meaning provided in Section
1301.
"Guarantor Request" or "Guarantor Order" means a written request or
order signed in the name of the Guarantor by one Officer of the Guarantor, and
delivered to the Trustee.
"Holder", when used with respect to any Security, means, in the case
of a Registered Security, the Person in whose name the Security is registered in
the Security Register, and in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
"Indebtedness" of any Person means, without duplication (i) any
obligation of such Person for money borrowed, (ii) any obligation of such Person
evidenced by bonds, debentures, notes, or other similar instruments, (iii) any
reimbursement obligation of such Person in respect of letters of credit or
other similar instruments which support financial 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
6
includes any obligation of the Guarantor specified in clauses (i) through (v)
above to the extent that said Indebtedness is guaranteed by the Company.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other security
interest.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the option of the
Holder or otherwise.
"Notice of Default" shall have the meaning provided in Section 501.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, any Assistant Secretary or the
Controller of the Company or the Guarantor, as the case may be.
7
"Officer's Certificate" means a certificate signed by any Officer of
the Company or the Guarantor, as the case may be, in his or her capacity as such
Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
General Counsel for the Company or the Guarantor, as the case may be, and who
shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities or any series of
Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company or the Guarantor) in trust or set aside and segregated in trust
by the Company or the Guarantor (if the Company or the Guarantor, as the
case may be, shall act as a Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) to the extent provided in Article Fifteen, (x) Securities
with respect to which the Company has effected defeasance pursuant to
Section 1502 and (y) solely for the limited purpose set forth in Section
1503, Securities with respect to which the Company has effected covenant
defeasance pursuant to such Section 1503; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction,
8
notice, consent or waiver hereunder or whether a quorum is present at a meeting
of Holders of Securities, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a foreign currency or currency unit shall be the
U.S. dollar equivalent, determined as of the date of original issuance of such
Security in accordance with Section 301 hereof, of the principal amount of such
Security (or, in the case of an Original Issue Discount Security denominated in
a foreign currency or currency unit, the U.S. dollar equivalent, determined as
of the date of original issuance of such Security, of the amount determined as
provided in (i) above), (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities
beneficially owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so
beneficially owned shall be so disregarded. Securities so beneficially owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"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, on) and interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Stated Maturity or Maturities thereof and
the redemption provisions, if any, with respect thereto, are to be determined by
the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the United States) where the principal of (and
premium, if any, on) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
9
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana Islands.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Property" means any parcel of real property and related
fixtures or improvements (other than telecommunications equipment, including,
without limitation, satellite transponders) owned by the Company, the Guarantor
or any wholly owned Subsidiary of the Company and located in the United States,
the aggregate book value of which on the date of determination exceeds $500
million, other than any such real property and related fixtures or improvements,
which, as determined in good faith by the Board of Directors of the Company, is
not of material importance to the total business conducted by the Company and
its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" has the meaning specified in Section 1402.
"Repayment Price" has the meaning specified in Section 1402.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any Vice President, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee
10
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means a corporation all of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more of its Subsidiaries, or by the Company and one or more of its
Subsidiaries, which is incorporated under the laws of a State of the United
States, and which owns a Principal Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that, if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Specified Currency" has the meaning specified in Section 312.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority of the
outstanding Voting Stock of which is at the time, directly or indirectly, owned
by such Person, by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation), including, without limitation, a partnership or joint venture, in
which such Person, one or more Subsidiaries thereof, or such Person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons performing
similar functions).
11
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
provided, however, that, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States and any estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"U.S. Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as U.S. Depositary by the Company
pursuant to Section 301, which must be a clearing agency registered under the
Exchange Act, and if at any time there is more than one such Person, "U.S.
Depositary" as used with respect to the Securities of any series shall mean the
U.S. Depositary with respect to the Securities of such series.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by, and acting as an agency or instrumentality of, the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by such custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government obligation evidenced by such depository receipt.
12
"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 covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
13
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Sixteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company or the
Guarantor or to all of them. Such
14
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1606.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or to writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee, the Company and the Guarantor may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner which the Trustee
deems sufficient.
(e) If the Company or the Guarantor shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company or the Guarantor, as the case may be,
may, at its option, by or pursuant to Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
or the Guarantor, as the case may be, shall have no obligation to
15
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, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee, Company or Guarantor.
-----------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished,
filed or mailed, first class postage prepaid, in writing to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration; or
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or the Guarantor, as the case may be, addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture, to the attention of its Secretary, or at any other address
previously furnished in writing to the Trustee by the Company or the
Guarantor, as the case may be.
16
SECTION 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Registered Securities of any event by the
Company, the Guarantor or the Trustee:
(1) such notice shall be sufficiently given to Holders of Registered
Securities (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each such Holder affected by such
event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least twice, the first such publication to be not earlier
than the earliest date, and the second such publication to be not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then any manner of giving such notice
as shall be satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice for every purpose hereunder; provided that this paragraph
shall not apply to any notice required by the Trust Indenture Act to be
transmitted by mail. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein.
Any notice mailed to a Holder of Registered Securities in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice. Any notice to
Holders of Bearer Securities shall be deemed to have been given on the date of
the first such publication referred to in (2) above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
17
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
------------------------
Any request, demand, authorization, direction, notice, consent, proxy
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 108. Trust Indenture Act.
-------------------
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 109. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its respective successors and assigns, whether so expressed
or not.
SECTION 111. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities, the
Guarantees or the coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, the Guarantees or the
coupons, express or implied, shall give to any Person, other than the parties
hereto, any Authenticating Agent, any Paying Agent, any Security Registrar and
their successors hereunder and the
18
Holders of Securities, the Guarantees or coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
-------------
This Indenture, the Securities, the coupons and, if issued, the
Guarantees shall be governed by and construed in accordance with the law of the
State of New York.
SECTION 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 115. Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service.
- -------
The Company and, if any Guarantees are issued, the Guarantor each
hereby irrevocably submit to the non-exclusive jurisdiction of any New York
state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture, the Securities of any
series or, with respect to the Guarantor, the Guarantees, and the Company and
the Guarantor hereby irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in such New York state or federal
court. The Company and the Guarantor hereby irrevocably waive, to the fullest
extent they may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Company and the Guarantor agree
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
So long as any Securities remain Outstanding, the Company, and so long
as any Guarantees remain Outstanding, the Guarantor, will at all times have its
principal executive office in the Borough of Manhattan, the City of New York,
or an authorized agent in the Borough of Manhattan, The City of New York, where
or upon whom process may be served in any legal action or proceeding arising out
of or relating to the Indenture, the Securities of any series or, with respect
to the Guarantor, the Guarantees. Service of process upon such agent and
written notice of such service mailed or delivered to the Company or
19
the Guarantor shall to the extent permitted by law be deemed in every respect
effective service of process upon the Company or the Guarantor, as the case may
be, in any such legal action or proceeding.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Registered Securities, if any, of each series, the Bearer
Securities, if any, of each series and related coupons, the temporary global
Securities of each series, if any, the permanent global securities of each
series, if any, and the Guarantees, if any, to be endorsed thereon shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution of the Company or, with respect to the Guarantees, the Guarantor, as
the case may be, or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or applicable tax law or as may, consistently herewith, be determined by the
officers executing such Securities, including the Guarantees, if any, to be
endorsed thereon, or coupons, as evidenced by their execution of the Securities.
If the forms of Securities, including the Guarantees, if any, to be endorsed
thereon, or coupons of any series are established by action taken pursuant to a
Board Resolution of the Company or the Guarantor, as the case may be, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities or coupons. Any portion of the text of any Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities, including the Guarantees, if any, to be
endorsed thereon, and coupons, if any, shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, Guarantees or coupons,
as evidenced by their execution of such Securities, Guarantees or coupons.
20
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF
BOSTON, as Trustee
By
-----------------------------
-
Authorized Signatory
SECTION 203. Securities in Global Form.
-------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee or the Security Registrar in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee or the Security Registrar shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or Section 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee or the
Security Registrar the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
21
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Guarantor (if Guarantees are
issued), the Trustee and any agent of the Company, the Guarantor (if Guarantees
are issued) and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euro-clear or Cedel S.A.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series.
There shall be established in or pursuant to one or more Board
Resolutions of the Company or pursuant to authority granted by one or more Board
Resolutions of the Company and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1405 and except for
any Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series is payable;
22
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which any such interest shall accrue, or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date, if any, for any interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date or dates shall
be determined, and the basis upon which interest shall be calculated if
other than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
Canton, Massachusetts, where the principal of (and premium, if any, on)
and any interest on Securities of the series shall be payable (which in
the case of Euro Securities shall be outside the United States), any
Registered Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and,
if different than the location specified in Section 105, the place or
places where notices or demands to or upon the Company or, if applicable,
the Guarantor in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices at which
and the other terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable, and if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion, or the
manner of calculation of such portion, of the principal amount of any
Securities of the series that shall be payable upon acceleration of the
Maturity thereof pursuant to Section 502, upon redemption of the Securities
of the series which are redeemable before their Stated Maturity, upon
surrender for repayment at the option of the Holder, or which the Trustee
shall be entitled to claim pursuant to Section 504;
23
(11) the currency or currencies, including currency units, in which
payment of the principal of (and premium, if any, on) and interest, if any,
on the Securities of the series shall be payable if other than the currency
of the United States of America;
(12) whether the amount of payments of principal of (and premium, if
any, on) or interest on the Securities of the series may be determined with
reference to an index, and the manner in which such amounts shall be
determined;
(13) if the principal of (and premium, if any, on) and interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies, including
currency units, other than that or those in which the Securities are
denominated or stated to be payable, the currency or currencies in which
payment of the principal of (and premium, if any, on) and interest on
Securities of such series as to which such election is made shall be
payable, and the period or periods within which and the terms and
conditions upon which such election may be made;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in lieu of
the provisions of Article Fifteen that shall be applicable to the
Securities of the series, and the obligations, if any, under this Indenture
to which the provisions of Section 1503 shall apply;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of, or additions to the Events
of Default or covenants of the Company or, if applicable, the Guarantor
with respect to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or covenants
set forth herein;
(18) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form with or without coupons and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for Bearer Securities
of the series (if permitted by applicable laws and regulations), whether
Bearer Securities of the series may be exchanged for Registered
24
Securities of the series, and the circumstances under which and the place
or places where such exchanges may be made and if Securities of the series
are to be issuable in global form, the identity of any initial depository
therefor;
(19) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, the extent to
which, or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 304 and the extent to which, or the manner in
which, any interest payable on a permanent global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section
307;
(21) if Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) whether Securities of or within the series are to be guaranteed
by the Guarantor and any modification of the terms of the Guarantees as
set forth in Article 13 hereof; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture) including, without
limitation, the terms, if any, of any exchangeability or
25
prepayment provisions, the price or prices (expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued and any modifications of the definitions set forth herein.
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officer's Certificate referred to above or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic Offering,
the Board Resolution (or action taken pursuant thereto), Officer's Certificate
or supplemental indenture referred to above may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a Company
Order or that such terms shall be determined by the Company in accordance with
other procedures specified in a Company Order as contemplated by the third
paragraph of Section 303.
SECTION 302. Denominations.
-------------
Unless otherwise provided as contemplated by Section 301, with respect
to any series of Securities, any Registered Securities of a series, other than
Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof
and any Bearer Securities of a series, other than Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in the
denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board or the Vice Chairman of
the Board, or its President, or one of its Executive Vice Presidents or Vice
Presidents, or by its Treasurer or one of its Assistant Treasurers and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities or coupons may be the manual or facsimile
signature of such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
26
Securities and coupons bearing the manual or facsimile signatures of
individuals who were the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company and (if Securities
of such series were specified as contemplated by Section 301 to be guaranteed
by the Guarantor) having endorsed thereon Guarantees duly executed by the
Guarantor, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication
of Securities of such series; provided further, however, that, in connection
with its original issuance, no Euro Security shall be mailed or otherwise
delivered to any location in the United States; and provided further, however,
that a Euro Security (other than a Security in temporary global form) may be
delivered in connection with its original issuance only if the Person entitled
to physical delivery of such Euro Security (which, in the case of a Euro
Security to be received in exchange for all or a portion of a Security in
temporary global form, shall be the account holder with Euro-clear or Cedel
S.A. to whose account all or such portion of such Security in temporary global
form has been credited) shall have furnished a certificate in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date. If any Security shall be represented by a permanent global
Security, then, for purposes of this Section and Section 304, the notation of
a beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security shall
be deemed to be physical delivery in connection with the original issuance of
such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth the
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest rate,
maturity date, date of issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any related
coupons, or the form of any Guarantees endorsed thereon, have been established
in or pursuant to one or more Board Resolutions of the Company or the Guarantor,
as the case may be, as
27
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to TIA
Sections 315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the form or forms of such Securities and any such Guarantees
to be endorsed thereon and any coupons have been established in conformity
with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been, or
in the case of Securities of a series offered in a Periodic Offering, will
be, established in conformity with the provisions of this Indenture,
subject, in the case of Securities of a series offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
(c) that such Securities, together with any Guarantees endorsed
thereon and any coupons appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and the
Guarantor, respectively, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and to such other
qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities, such Guarantees and any coupons.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities or as to the authorization by the Guarantor of any Guarantee endorsed
thereon, the form and terms thereof and the legality, validity, binding effect
and enforceability thereof, upon the Opinion
28
of Counsel and the other documents delivered pursuant to Sections 201 and 301
and this Section, as applicable, in connection with the first authentication of
Securities of such series.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued except as
otherwise provided pursuant to Section 301 in connection with the Securities of
any series.
No Security, no Guarantee endorsed thereon and no coupon appertaining
thereto shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security, or the
Security to which such coupon appertains, a certificate of authentication
substantially in the form provided for herein, duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. The delivery of any Security by the Trustee after
the authentication thereof hereunder shall constitute due delivery of any
Guarantee endorsed thereon on behalf of the Guarantor. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, and, if applicable, having endorsed thereon Guarantees duly executed
by the Guarantor substantially of the tenor of the definitive Guarantees, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities, Guarantees or
coupons may determine, as conclusively evidenced by their execution of such
Securities, Guarantees or coupons, as the case may be. In the case of any
series issuable as Bearer Securities, such temporary Securities shall be
delivered only in compliance with the conditions set forth in Section 303 and
may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary
29
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations,
having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further,
however, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and Cedel S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than 15 days
before the date specified in, or determined pursuant to the terms of, any such
temporary global Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of that series, in aggregate
principal amount equal to the principal amount of such temporary global Security
and, if applicable, having endorsed thereon Guarantees duly executed by the
Guarantor, executed by the Company. On or after the Exchange Date, such
temporary global Security shall be presented and surrendered by the Common
Depositary to the Trustee, as the Company's agent for such purpose, or to the
Security Registrar, to be exchanged, in whole or from time to time in part, for
definitive Securities of such series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged and, if applicable, having endorsed
thereon Guarantees duly executed by the Guarantor; provided, however, that,
unless otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global Security must be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by Cedel S.A. as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form set
30
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301). The definitive Securities to be delivered
in exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor, and, if applicable, having endorsed thereon Guarantees duly executed
by the Guarantor, upon the receipt by Euro-clear or Cedel S.A., as the case may
be, after the Exchange Date of a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), signed by the account holder and dated no earlier than
15 days prior to the date on which Euro-clear or Cedel S.A., as the case may be,
furnishes to the Common Depositary in accordance with the preceding paragraph a
certificate in the form set forth in Exhibit A-2 to this Indenture (or such
other form as may be established pursuant to Section 301) that relates to the
interest to be exchanged for definitive Securities. Copies of the certificate
in the form set forth in Exhibit A-1 to this Indenture (or such other form as
may be established pursuant to Section 301) shall be available from the offices
of Euro-clear and Cedel S.A., the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euro-clear or Cedel
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on any Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euro-clear and Cedel
S.A. on such Interest Payment Date upon delivery by Euro-clear and Cedel S.A. to
the Trustee or the applicable Paying Agent of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other form as
may be established pursuant to Section 301), for credit without further interest
on or after such Interest Payment Date to the respective accounts of the Persons
for whom Euro-clear or Cedel S.A., as the case may be, holds such temporary
global Security on such Interest Payment Date and who have each delivered to
Euro-clear or Cedel S.A., as the case may be, a certificate in the form set
forth
31
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the
relevant Interest Payment Date occurring prior to the Exchange Date.
Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section and of the third paragraph of
Section 303 of this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the same
series and of like tenor and, if applicable, having endorsed thereon Guarantees
duly executed by the Guarantor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euro-clear and Cedel S.A. and
not paid as herein provided shall be returned to the Trustee or the applicable
Paying Agent immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register for each
series of Securities (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided, and for facilitating exchanges of temporary
global Securities for permanent global Securities or definitive Securities, or
both, or of permanent global Securities for definitive Securities, or both, as
herein provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such series,
the Company shall execute, and the Trustee shall
32
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 and tenor,
having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at any such office
or agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive, having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 301, Registered Securities, including Registered
Securities received in exchange for Bearer Securities, may not be exchanged for
Bearer Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth, or determined in the
manner provided, in the applicable Officer's Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at the option of
the Holder, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons (except as
provided below) and with all matured coupons in default appertaining thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them, the Guarantor
and any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive, having, if
applicable, endorsed thereon Guarantees duly executed by the Guarantor.
33
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
pursuant to this Section only as provided in this paragraph. If the beneficial
owners of interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee or the Security Registrar
definitive Securities of that series in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security, executed by the Company and, if applicable, having endorsed thereon
Guarantees duly executed by the Guarantor. On or after the earliest date on
which such interests may be so exchanged, in accordance with instructions given
by the Company to the Trustee or the Security Registrar and the Common
Depositary or the U.S. Depositary, as the case may be (which instructions shall
be in writing but need not comply with Section 102 or be accompanied by an
Opinion of Counsel), such permanent global Security shall be surrendered from
time to time by the Common Depositary or the U.S. Depositary, as the case may
be, or such other depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, or to
the Security Registrar, to be exchanged, in whole or from time to time in part,
for definitive Securities of the same series without charge, and the Trustee
shall authenticate and deliver in accordance with such instructions, in exchange
for each portion of such permanent global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor and, if applicable, having endorsed thereon Guarantees duly
executed by the Guarantor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the permanent global Security shall be issuable only in
the form in which the Securities are issuable, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
of that series and of like tenor for redemption and ending on the relevant
Redemption Date; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following
any such exchange in part, such permanent global Security shall be returned by
the Trustee or the Security Registrar to the Common Depositary or the U.S.
Depositary, as the case may be, or such other depositary referred to above in
accordance with the Company's instructions. If a Registered Security is issued
in exchange for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Defaulted Interest, as the case may be, will not be
34
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 the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer, in form satisfactory to the Company and the Security Registrar or
any transfer agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1405 not involving any transfer.
In the event of any redemption in part, the Company shall not be
required (i) to issue, register the transfer of or exchange any Security of any
series during the period beginning at the opening of business 15 days before the
selection of Securities of like tenor and of the series of which such Security
is a part for redemption, and ending at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption; (ii) to register the transfer of or exchange
any Registered Security so selected for redemption, in whole or in part, except
the unredeemed portion of any Security being redeemed in part; (iii) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and of like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption; or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
35
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and
----------------------------------------------------
Coupons.
- -------
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount, having, if
applciable, 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 the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company, the
Guarantor or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall, subject to the following paragraph,
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount, having, if applicable, endorsed thereon Guarantees duly
executed by the Guarantor, bearing a number not contemporaneously outstanding
and with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon,
as the case may be; provided, however, that principal of and premium, if any,
and interest on Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any Guarantees endorsed thereon
duly executed by the Guarantor, and with any coupons appertaining thereto,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company and, if applicable, the Guarantor, whether or not the
destroyed, lost or stolen Security and any coupons appertaining thereto, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
any such new Security, and
36
any coupons appertaining thereto, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series, any Guarantees endorsed thereon and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
- --------------
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to any U.S. Depositary, and/or to each of
Euro-clear and Cedel S.A. with respect to that portion of such permanent global
Security held for its account by the Common Depositary, for the purpose of
permitting such U.S. Depositary and/or each of Euro-clear and Cedel S.A. to
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in each case,
as provided in Clause (1) or (2) below:
37
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at the address of
such Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to an Optional Reset Date for such Note. Not later than 40
days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the
38
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so
(i) such new interest rate (or such new spread or spread multiplier, if
applicable) and (ii) the provisions, if any, for redemption during the period
from such Optional Reset Date to the next Optional Reset Date or if there is no
such next Optional Reset Date, to the Stated Maturity Date of such Security
(each such period a "Subsequent Interest Period"), including the date or dates
on which or the period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Fourteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
39
SECTION 308. Optional Extension of Stated Maturity.
-------------------------------------
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity,
(ii) the new Stated Maturity, (iii) the interest rate applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Fourteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
40
SECTION 309. Persons Deemed Owners.
---------------------
Prior to the due presentment of a Registered Security for registration
of transfer, the Company, the Guarantor (if a Guarantee is endorsed on such
Registered Security), the Trustee and any agent of the Company, the Guarantor
(if a Guarantee is endorsed on such Registered Security) or the Trustee may
treat the Person in whose name such Registered Security is registered as the
absolute owner of such Registered Security for the purpose of receiving payment
of principal of (and premium, if any, on) and (subject to Sections 305 and 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and none of the Company, the Guarantor (if a
Guarantee is endorsed on such Registered Security), the Trustee or any agent of
the Company, the Guarantor (if a Guarantee is endorsed on such Registered
Security) or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Guarantor (if a Guarantee is endorsed
on any such Bearer Security), the Trustee and any agent of the Company, the
Guarantor (if a Guarantee is endorsed on any such Bearer Security) or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and, to the extent permitted
by law, none of the Company, the Guarantor (if a Guarantee is endorsed on any
such Bearer Security), the Trustee or any agent of the Company, the Guarantor
(if a Guarantee is endorsed on any such Bearer Security) or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Guarantor, the Trustee, any Paying Agent or
the Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any temporary or
permanent global Security, nothing herein shall prevent the Company, the Trustee
or, if applicable, the Guarantor, or any agent of the Company, the Trustee or,
if applicable, the Guarantor from giving effect to any written certification,
proxy or other authorization furnished by a Common Depositary or a U.S.
Depositary, as the case may be, or impair, as between a Common Depositary or a
U.S. Depositary and holders of beneficial interests in any temporary or
permanent global Security, as the case may be, the operation of customary
practices governing the exercise of the rights of the Common Depositary or the
U.S. Depositary as Holder of such temporary or permanent global Security.
41
SECTION 310. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured coupons so delivered shall be promptly cancelled by the Trustee.
All Bearer Securities and unmatured coupons so delivered shall be promptly
cancelled by the Trustee. The Company or the Guarantor may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company or the Guarantor, as the case may be, may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company or the Guarantor shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be destroyed unless otherwise
directed by a Company Order.
SECTION 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Judgments.
---------
If pursuant to Section 301, the provisions of this Section are
established as terms of a series of Securities, the following provisions shall
apply: (a) the obligation, if any, of the Company to pay the principal of (and
premium, if any, on) and interest on Securities of such series in the currency
or currency unit specified pursuant to Section 301 (the "Specified Currency")
shall be of the essence and the Company agrees that, to the extent permitted
under applicable law, judgments in respect of such Securities shall be given in
the Specified Currency; (b) the obligation of the Company to make payments in
the Specified Currency of the principal of (and premium, if any, on) and
interest on such Securities shall, notwithstanding any payment in any other
currency or currency unit (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Specified Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency or currency unit (after any
premium and cost of exchange) on the Business Day in the country of issue of the
Specified Currency or, in the case of a currency unit, in the international
banking community, immediately following the day on which such Holder receives
such payment; (c) if the
42
amount in the Specified Currency that may be so purchased for any reason falls
short of the amount originally due, the Company shall pay such additional
amounts as may be necessary to compensate for such shortfall; and (d) any
obligation of the Company not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein,
shall continue in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
Except as set forth below, this Indenture shall upon Company Request
cease to be of further effect with respect to any series of Securities (except
as to any surviving rights of registration of transfer or exchange of Securities
of such series herein expressly provided for, any surviving rights of tender for
repayment at the option of the Holders and the obligation of the Company and, if
applicable, the Guarantor to pay any Additional Amounts as contemplated by
Section 1007) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and
(iv) Securities and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company or the Guarantor,
as the case may be, and thereafter repaid to the Company or the
Guarantor, as the case may be, or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(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
43
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, solely for the benefit of the
Holders of Securities and coupons, an amount sufficient to pay and
discharge the entire indebtedness on such Securities and coupons not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Securities and coupons which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has irrevocably paid or caused to be irrevocably paid
all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and to any Authenticating Agent under Section 611 and,
if money shall have been deposited with the Trustee pursuant to clause (1) 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 Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company or the Guarantor acting as a Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any, on) and interest on the Securities for whose payment such
money has been deposited with the Trustee.
44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when due and payable, at its Maturity, upon
acceleration, redemption or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other
than that series) and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 33 1/3% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) one or more defaults shall have occurred under any agreements,
indentures or instruments under which either the Company then has
outstanding Indebtedness in excess of $100,000,000 in the aggregate and,
if not already matured at its final maturity in accordance with its terms,
such Indebtedness shall have been accelerated and remains unpaid; or
(5) the entry by a court having jurisdiction in the premises of a
money judgment in an amount in excess of $100,000,000 against the Company
which has become final and not subject to appeal, and the continuance of
any such judgment unstayed, in effect and unpaid for a period of 60 days;
or
45
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or, if Guarantees are
issued, the Guarantor in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or, if
Guarantees are issued, the Guarantor a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or, if Guarantees
are issued, the Guarantor under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or, if Guarantees are
issued, the Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company or, if Guarantees are issued, the
Guarantor of the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company 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
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in Section 501(6) or
(7)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 33-1/3% in principal amount of the Outstanding
Securities of that series may, and the Trustee at the request of such Holders
shall, declare immediately due and payable, by a notice in writing to the
Company and, if applicable, the Guarantor (and to the Trustee if given by
Holders) the unpaid principal (or, if the Securities of that series are Original
Issue Discount Securities or
46
Indexed Securities, such portion of the principal amount as may be specified in
the terms of that series) of (and premium, if any) and accrued interest in
respect of each Security then Outstanding in that series (the "Default Amount").
Upon any such declaration, the Default Amount shall become immediately due and
payable on all Outstanding Securities of that series. Notwithstanding any other
provision of Section 502, if an Event of Default specified in Section 501(6)
or (7) occurs then, the Default Amount on the Securities then Outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Trustee and, if applicable, the Guarantor, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that series and
any related coupons,
(B) the principal of (and premium, if any, on) any Securities of
that series which has become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed
therefor in such Securities,
(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 amounts of principal of (or premium, if any,
on) or interest on Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities of any series because
an Event of Default specified in
47
Section 501(4) shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof have
rescinded any declaration of acceleration in respect of such Indebtedness or
waived any default thereunder permitting such an acceleration, and written
notice of such discharge, rescission or waiver, as the case may be, shall have
been given to the Trustee by the Company or the Guarantor and by the holders of
such Indebtedness or a trustee, fiduciary or agent for such holders, within 30
days after such declaration of acceleration in respect of the Securities of that
series and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series or any related coupon when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it (such demand and
payment in the case of Euro Securities to occur only outside the United States),
for the benefit of the Holders of such Securities and coupons appertaining
thereto, the whole amount then due and payable on such Securities and coupons of
that series for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, the Guarantor (if any related Guarantees are issued) or any
other obligor upon such Securities of that series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, the Guarantor (if any related Guarantees are issued) or
any other obligor upon such Securities, 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
48
rights of the Holders of Securities of such series and any coupons appertaining
thereto by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor (if Guarantees are
issued) or any other obligor upon the Securities of a series or the property of
the Company, the Guarantor (if Guarantees are issued) or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company or, if applicable, the Guarantor for the payment
of overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, and interest owing and unpaid in
respect of the Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of the Securities of such series and any coupons appertaining
thereto allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same (which
distribution, in the case of Euro Securities, shall occur only outside the
United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of a Security or of a coupon to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to such Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 606.
Subject to Section 902 and unless otherwise provided as contemplated
by Section 301, nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or of a coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or
49
coupons or the rights of any such Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the Securities
or any coupon may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities or coupons, or both, as
the case may be (such presentation, in the case of Euro Securities or coupons,
to occur only outside the United States), and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee hereunder,
-----
including under Section 606;
Second: To the payment (such payment, in the case of Euro Securities,
------
to occur only outside the United States) of the amounts then due and unpaid
for principal of (and premium, if any, on) and any interest on the
Securities and coupons in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
-----
thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or 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
50
(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 33-1/3% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an indemnity,
reasonably satisfactory to the Trustee, against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or any coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 307) interest on, such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of the Holder, on the Repayment Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such
51
proceeding, the Company, the Guarantor, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
or coupons to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders.
------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee may refuse to follow any direction which, in the
Opinion of Counsel to the Trustee, is unduly prejudicial to other Holders
of Securities of such series or would subject the Trustee to personal
liability.
52
SECTION 513. Waiver of Past Defaults.
-----------------------
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series and any coupons appertaining
thereto waive any past default hereunder with respect to Securities of such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any, on) or
interest on any Security of such series or any related coupon, or
(2) in respect of a provision hereof which under Article Nine cannot
be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default with respect to Securities of such series arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of (or premium, if any, on) or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so
53
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of
Securities of such series and any related coupons; and provided further that in
the case of any Default or breach of the character specified in Section 501(3)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order or Guarantor Request or Guarantor Order, as the case may be,
or as otherwise expressly provided herein, and any resolution of the Board
of Directors of the Company or the Guarantor may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other
54
evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall in good faith
determine to make such further inquiry or investigation, it shall be
entitled upon reasonable notice and at reasonable times during normal
business hours to examine the books, records and premises of the Company
or, if any Guarantees are issued, the Guarantor, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
No provisions of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities (except for the
Trustee's certificates of authentication), including any Guarantees endorsed
thereon, and in any coupons, shall be taken as the statements of the Company or
the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
and the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
55
SECTION 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
SECTION 606. Compensation, Reimbursement and Indemnification of
--------------------------------------------------
Trustee.
- -------
The Company agrees:
(a) to pay to the Trustee or any predecessor Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee or any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any
predecessor Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of such obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any, on) or
interest, if any, on particular Securities or any coupons.
SECTION 607. Corporate Trustee Required; Eligibility
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or
56
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company and, if
applicable, the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by a Board Resolution delivered to
Trustee, provided that, contemporaneously therewith (x) the Company immediately
appoints a successor Trustee with respect to the Securities of such series
meeting the requirements of Section 607 hereof and (y) the terms of Section 609
hereof are complied with in respect of such appointment (the Trustee being
removed hereby agreeing to execute the instrument contemplated by Section 609(b)
hereof, if applicable, under such circumstances) and provided further that, no
Default with respect to such Securities shall have occurred and then be
continuing at such time, or (ii) Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series
delivered to the Trustee, the Company and, if applicable, the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or the
Guarantor or by any Holder of a Security who for at least six months has
been a bona fide Holder of a Security of the series as to which the Trustee
has a conflicting interest, or
(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 such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
57
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
(and, in the case of Section 608(d)(1) above, who is a Holder of a Security of
the series as to which the Trustee has a conflicting interest) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities of that series and
accepted appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act,
58
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In 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 applcable, 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 specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company and, if
applicable, the Guarantor shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
59
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such authentications shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the authentication
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents (which may
be an Affiliate or Affiliates of the Company) with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal or
state authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such
60
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall promptly give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
61
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By
---------------------------------
as Authenticating Agent
By
---------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint in accordance with this Section an Authenticating Agent
(which, if so requested by the Company, shall be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect to
such series of Securities, provided that the terms and conditions of such
appointment are acceptable to the Trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that none of the
Company, the Guarantor or the Trustee or any agent of any of them shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
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SECTION 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the May 15
occurring after the initial issuance of Securities hereunder, the Trustee shall
transmit by mail to the Holders of Securities of any series with respect to
which it acts as Trustee, in the manner and to the extent provided in TIA
Section 313(c), and to the Company and the Guarantor, a brief report dated as of
such May 15 which satisfies the requirements of TIA Section 313(a).
SECTION 703. Reports by Company and the Guarantor.
------------------------------------
The Company and, so long as any Securities in respect of which
Guarantees have been issued are Outstanding, the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Company or the Guarantor, as the case may be, may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company or the Guarantor, as the case may be, is
not required to file information, documents or reports pursuant to either
of such Sections, then the Company or the Guarantor, as the case may be,
shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations; and
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company and the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations.
The Trustee shall transmit, within 30 days after the filing thereof
with the Trustee, to the Holders of Securities, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company or the Guarantor, as the case may
be, pursuant to paragraphs (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Guarantor, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants expressly are 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
(2) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of (or
premium, if any, on) or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(4) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(5) to secure the Securities; or
64
(6) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect
the interests of the Holders of Securities of any series and any related
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, the
Guarantor, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture which affect such series of Securities or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security of each such series
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal or interest on, or the terms of any sinking fund
or analogous payment with respect to, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof or repayment thereof at the option of the Holder, or
change any obligation of the Company to pay Additional Amounts contemplated
by Section 1007 (except as permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or upon the redemption
thereof or the amount thereof provable in bankruptcy pursuant to
Section 504 or change the coin or currency in which any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date, or, in the case of repayment at the option of the Holder,
on or after the Repayment Date), or modify the provisions of this Indenture
with respect to the mandatory redemption of Securities or repayment of the
Securities at the option of the
65
Holder in a manner adverse to any Holder of any Securities or any coupons
appertaining thereto, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Sections 513
and 1009, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Security or coupon with respect to changes in
the references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 609(b) and 901(7), or
(4) reduce the terms and conditions of any obligations of the
Guarantor in respect of the due and punctual payment of the principal
thereof and premium, if any, and interest, if any, thereon, any Additional
Amounts payable under Section 1007 in respect thereof or any sinking fund
or analogous payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
66
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 or
any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee, the Company and, if applicable, the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, having,
if applicable, Guarantees endorsed thereon and executed by the Guarantor, and
authenticated and delivered (which delivery, in the case of Euro Securities,
shall occur only outside the United States) by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay, in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series), the principal of (and premium, if any, on) and any
interest on the Securities of that series in accordance with the terms of such
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments.
67
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served, which agency initially shall be The First National Bank of Boston at
150 Royall Street, Mail Stop 45-02-15, Canton, Massachusetts 02021, Attention:
Corporate Trust Administration. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered 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 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 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 such respective presentations,
surrenders, notices and demands.
68
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
an 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 Canton, Massachusetts, if (but only if) payment in Dollars of the full amount
of such principal, premium, if any, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities as contemplated by Section 301 with
respect to a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the Company
in Canton, Massachusetts, and initially appoints the Trustee at its Corporate
Trust Office as Paying Agent in Canton, Massachusetts and as its agent to
receive all such presentations, surrenders, notices and demands.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company or the Guarantor shall at any time act as a Paying
Agent with respect to the Securities of any series and any related coupons, it
will, on or before each due date of the principal of (and premium, if any, on)
or any interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum (in the currency,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 302 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
69
(and premium, if any, on) or any interest on any Securities of that series,
deposit with a Paying Agent a sum (in the currency, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 302 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 its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums 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 such series) in the making of any
payment of principal of (or premium, if any, on) or any 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 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 coupon appertaining thereto shall thereafter, as an unsecured
general creditor,
70
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 trust money, 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 any supplemental indentures hereto or Officer's Certificate
creating any series, the Company and, so long as any Securities in respect
of which Guarantees have been issued are Outstanding, the Guarantor will do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective corporate existence, rights (charter and statutory) and
franchises; provided, however, that neither the Company nor the Guarantor shall
be required to preserve any such right or franchise if its Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of its business, and that the loss thereof is not disadvantageous in any
material respect to the Holders of the Securities or any coupon appertaining
thereto.
SECTION 1005. Maintenance of Principal Properties.
-----------------------------------
The Company will cause all Principal Properties used or useful in the
conduct of its business or the business of the Guarantor or Restricted
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such properties
or prevent or restrict the sale, abandonment or other disposition of any of such
properties if such action is, in the judgment of the Company, desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the
71
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 by appropriate proceedings.
SECTION 1007. Additional Amounts.
------------------
If any Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any tax,
assessment or governmental charge ("Additional Amounts"), the Company will pay
to the Holder of any Security of such series or any coupon appertaining thereto
such Additional Amounts as may be so provided by Section 301. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
(or premium, if any, on) or interest on, or in respect of, any Security of a
series or payment of any related coupon or the net proceeds received on the sale
or exchange of any Security of a series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for by the terms of such
series established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal (and premium, if any) is
made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officer's Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officer's Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any, on) or interest on the Securities of that series shall be made
to Holders of Securities of that series or any related coupons who are not
United States Persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officer's
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled to (i) assume that no such withholding or deduction is required with
respect to any payment of
72
principal (and premium, if any) or any interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) make all payments of principal (and premium, if any)
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer's Certificate
furnished pursuant to this Section or in the event the Trustee shall not
withhold or deduct any sums as a result of the non-receipt of an Officer's
Certificate pursuant to this Section.
SECTION 1008. Compliance Certificate.
----------------------
(a) The Company and, so long as any Securities in respect of
Guarantees have been issued are Outstanding, the Guarantor each shall deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
or the Guarantor, as the case may be, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's or the Guarantor's, as the case may
be, compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1008(a), such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
(b) The Company will, so long as any of the Securities of any series
are Outstanding, deliver to the Trustee, as promptly as practicable upon any
officer listed in (a) above becoming aware of any Default, Event of Default or
default in the performance of any covenant, agreement or condition contained in
this Indenture an Officer's Certificate specifying such Default, Event of
Default, default or event of default and what action the Company is taking or
proposes to take with respect thereto and the status thereof.
SECTION 1009. Waiver of Certain Covenants.
---------------------------
With respect to the Securities of any series, the Company and the
Guarantor may omit in any particular instance to comply with any covenant or
condition specified pursuant to Section 301 as being subject to this Section
1009, if, before the time for such compliance, the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by an Officer's Certificate. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed, and shall deliver to
the Trustee such documentation and records as shall enable the Trustee to select
the Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities of any series (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, provided such method complies with the rules of
any national securities exchange or quotation system on which the securities are
then listed, and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal of Registered Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
74
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 to the
Holders of Securities to be redeemed not less than 30 nor more than 60 days
prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106) will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(5) the place or places (which must include the applicable Place or
Places of Payment and which in the case of Bearer Securities shall be
outside the United States) where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory to the Company,
the Guarantor, if applicable, the Trustee and any Paying Agent is
furnished, and
75
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on such Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as
a Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company and the
Guarantor shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so 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
76
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company, the Guarantor and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Guarantor
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Guarantor and the Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities of the same series and of like tenor, of any 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of such series (other than any previously called for
redemption or presented for repayment at the option of the Holder) theretofore
purchased or otherwise acquired by the Company, together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of previously
Outstanding Securities of such series which have been previously purchased or
otherwise acquired by the Company and delivered to the Trustee by the Company or
for Outstanding Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided, however, that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
78
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate), the basis for such credit and that such Securities
have not been previously so credited, and whether the Company intends to
exercise its right to make a permitted optional sinking fund payment with
respect to such series. Not more than 60 days before each such sinking fund
payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.
----------
If Securities of or within a series are specified, as contemplated by
Section 301, to be guaranteed by the Guarantor, then the Guarantor hereby fully
and unconditionally guarantees to each Holder of any such Security authenticated
and delivered by the Trustee and to each Holder of any coupon appertaining to
any such Security, and to the Trustee on behalf of each such Holder, the due
and punctual payment of the principal of (and premium, if any, on) and interest
(including, in case of default, interest on principal and, to the extent
permitted by applicable law, on overdue interest and including any additional
interest required to be paid according to the terms of any such Security or
any coupon appertaining 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
79
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 any 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 any 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 any 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 coupon 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, or
its Vice Chairman of the Board, or its President, or one of its Executive Vice
Presidents or Vice Presidents, or by its Treasurer or one of its Assistant
Treasurers and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Guarantees may be manual or
facsimile.
Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or did not hold such offices at the date
of such Securities.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guarantees set forth in this Article shall remain in full force
and effect notwithstanding any failure to endorse on each security a notation of
such Guarantee.
SECTION 1303. Limitation of Guarantor's Liability.
-----------------------------------
The Guarantor, and by its acceptance of a Security each Holder, hereby
confirms that it is the intention of all such parties that in no event shall any
Guarantor Obligations under the Guarantees constitute or result in a fraudulent
transfer or conveyance for purposes of, or result in a violation of, any
United States federal, or applicable United States state, fraudulent transfer
or conveyance or similar law. To effectuate the foregoing intention, in the
event that the Guarantor Obligations, if any, in respect of the Securities of
any series would, but for this sentence, constitute or result in such a
fraudulent transfer or conveyance or 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.
81
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 as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1402. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price (the "Repayment Price") equal to the
principal amount thereof, together with interest, if any, thereon accrued to the
repayment date specified in or pursuant to the terms of such Securities (the
"Repayment Date"). The Company covenants that on or before the Repayment Date
it will deposit with the Trustee or with a Paying Agent (or, if the Company or
the Guarantor is acting as a Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1403. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder
82
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1404. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable.
- -------
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company and, if
applicable, the Guarantor shall default in the payment of such Securities on
such Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in accordance with
such provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the principal amount of such Security so to
be repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; provided, however, that coupons whose Stated Maturity is
on or prior to the Repayment Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of such coupons, and provided further that, unless
otherwise specified as contemplated by Section 301, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1402 an amount equal to 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
83
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1405. Securities Repaid in Part.
-------------------------
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid, with, if applicable, Guarantees endorsed thereon duly executed by the
Guarantor. If a temporary global Security or permanent global Security is so
surrendered, such new Security so issued shall be a new temporary global
Security or a new permanent global Security, respectively.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
If pursuant to Section 301 provision is made for either or both of
(a) defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503, then the provisions
of such Section 1502 or Section 1503, as the case may be, together with Sections
1504, 1505 and 1506, shall be applicable to the Securities of such series, and
the Company may, at its option by Officer's Certificate, at any time, with
respect to the Securities of such series, elect to have either Section 1502 (if
applicable) or Section 1503 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article Fifteen.
SECTION 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series and subject to
Sections 1505 and 1506, the Company and the Guarantor shall be deemed to have
been discharged from their
84
respective obligations with respect to the Outstanding Securities of such series
and any related coupons on and after the date the conditions precedent set forth
below are satisfied but subject to satisfaction of the conditions subsequent set
forth below (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company and the Guarantor shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and any related coupons, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1505 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all their
other obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities of such securities and any related coupons to
receive, solely from the trust fund described in Section 1504 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any, on) and interest on such Securities and any related coupons
when such payments are due, (B) the Company's obligations and, to the extent
applicable, the Guarantor's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by
Section 1007, and such obligations as shall be ancillary thereto, (C) the
rights, powers, trusts, duties, immunities and other provisions in
respect of the Trustee hereunder and (D) this Article Fifteen. Subject to
compliance with this Article Fifteen, the Company may exercise its option under
this Section 1502 notwithstanding the prior exercise of its option under Section
1503 with respect to such Securities and any related coupons. Following a
defeasance, payment of the Securities of such series may not be accelerated
because of an Event of Default.
SECTION 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company and
the Guarantor shall each be released from their respective obligations under any
Section(s) of this Indenture applicable to 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
85
such Section or by reason of reference in any such Section to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default hereunder, but, except as specified
above, the remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby. Following a covenant defeasance, payment
of the Securities of such series may not be accelerated because of an Event of
Default solely by reference to such Sections specified above in this
Section 1503.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent or, as specifically
noted below, subsequent, to application of either Section 1502 or Section 1503
to any Outstanding Securities of or within a series and any related coupons:
(1) The Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions
of this Article Fifteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for the benefit of, and dedicated solely to, the Holders of such Securities
and any related coupons, (A) Dollars in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, Dollars in an amount, or
(C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (or other qualifying
trustee), to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (i) each installment of
principal of (and premium, if any, on) and interest on such Outstanding
Securities and any related coupons on the Stated Maturity (or Redemption
Date, if applicable) of such principal (and premium, if any) or interest on
the day on which such payments are due and payable in accordance with the
terms of this Indenture, the Securities of such series and the coupons, if
any, appertaining thereto, and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any
related coupons on the due dates thereof. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1102 hereof, a
notice of its election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the Securities
of such series and Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing (A) on the date
of such deposit or (B) insofar as paragraphs (6) and (7) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit or, if longer,
86
ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood
that the condition in this clause (B) is a condition subsequent and shall
not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in TIA Section 310(b) or otherwise for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B) result
in the trust arising from such deposit to constitute, unless it is
qualified as, a regulated investment company under the Investment Company
Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
delisted.
(6) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities of such
series and any related coupons will not recognize income, gain or loss for
federal 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.
87
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent and subsequent provided for in this Indenture relating to either
the defeasance under Section 1502 or the covenant defeasance under
Section 1503 (as the case may be) have been complied with.
SECTION 1505. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions.
- ----------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee--collectively for purposes of this Section
1505, the "Trustee") pursuant to Section 1504 in respect of the Outstanding
Securities of any series and any related coupons shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any related coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or the Guarantor acting as
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1504 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1506. Reinstatement.
-------------
Anything herein to the contrary notwithstanding, if and to the extent
the deposited money or U.S. Government Obligations (or the proceeds thereof)
either (i) cannot be applied by the Trustee or any Paying Agent in accordance
with Section 1505 because of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application or
(ii) are for any reason insufficient in amount, then (x) the Company's and the
Guarantor's obligations, if any, to pay principal of and any premium and
interest on the Securities of such series and any related coupons shall be
88
reinstated to the extent necessary to cover the deficiency on any due date for
payment and (y) in the case of a covenant defeasance under Section 1503, the
Company's and the Guarantor's obligations, if any, under any Sections applicable
to such Securities that are determined pursuant to Section 301 to be subject to
this provision shall be reinstated unless and until all deficiencies on any due
date for payment are covered. In any case specified in clause (i), the
Company's interest in the deposited money and U.S. Government Obligations (and
proceeds thereof) shall be reinstated to the extent the Company's payment
obligations are reinstated.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any or 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 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 for in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 33-1/3% in aggregate principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 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 paragraph (a) of this Section.
89
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 of Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, any representatives of the Company and its counsel and
any representatives of the Guarantor and its counsel.
SECTION 1604. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that, if any action is
to be taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which this Indenture expressly
provides may be made, given or taken by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the
Persons 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.
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to the first paragraph of Section 902, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of not less than a specified percentage in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the
90
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.
(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
91
Holders of Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting of the Holders of Securities of any series each
Holder of a Security of such series or proxy shall be entitled to one vote for
each $1,000 principal amount of Outstanding Securities of such series held or
represented by him (determined as specified in the definition of "Outstanding"
in Section 101); provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1602 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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:
VIACOM INTERNATIONAL INC.,
as Guarantor
By:
-----------------------------
Name:
Title:
Attest:
THE FIRST NATIONAL BANK OF
BOSTON,
as Trustee
By:
-----------------------------
Name:
Title:
Attest:
A-1-1
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v), are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Viacom Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-1-2
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S.$__________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date
occurring prior to the Exchange Date,
as applicable]
[Name of Person Making
Certification]
------------------------------
(Authorized Signatory)
--------------------
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]__________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Viacom Inc. or its agent
that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
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
A-2-2
Member Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the
Exchange Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear
System]
[CEDEL S.A.]
By
----------------------------
Exhibit 4.2
==================================================================
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
__________________________
Indenture
Dated as of __________, 1995
_________________________
Senior Subordinated Debt Securities
-----------------------------------
==================================================================
VIACOM INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 1995
------------------
------------------------------------------------------------------
Trust Indenture Indenture
Act Section Section
--------------- ------------
Sec. 310 (a)(1) . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . 608
Sec. 312 (c) . . . . . . . . . . . . . . 701
Sec. 314 (a) . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . 1008(a)
(c)(1) . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . 102
Sec. 315 (b) . . . . . . . . . . . . . . 601
Sec. 316 (a)(last
sentence) . . . . . . . . . . . . . . 101("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . 104(e)
Sec. 317 (a)(1) . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . 1003
Sec. 318 (a) . . . . . . . . . . . . . . 108
(c) . . . . . . . . . . . . . . 108
TABLE OF CONTENTS
----------------------------------------
PAGE
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . 1
Recital of the Guarantor . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Agent Bank . . . . . . . . . . . . . . . . . 3
Authenticating Agent . . . . . . . . . . . . 3
Authorized Newspaper . . . . . . . . . . . . 3
Banks . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . 3
Capitalized Lease . . . . . . . . . . . . . . 4
Cedel S.A. . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . 4
Common Depositary . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . 4
Company Request or Company Order . . . . . . 4
Corporate Trust Office . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . 4
Credit Agreement . . . . . . . . . . . . . . 4
Currency Agreement . . . . . . . . . . . . . 5
Default . . . . . . . . . . . . . . . . . . . 5
Default Amount . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . 5
Dollar or $ . . . . . . . . . . . . . . . . . 5
Euro-clear . . . . . . . . . . . . . . . . . 5
Euro Security . . . . . . . . . . . . . . . . 5
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
ii
PAGE
----
Event of Default . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . 5
Exchange Date . . . . . . . . . . . . . . . . 5
Exchange Rate Agent . . . . . . . . . . . . . 5
Guarantee . . . . . . . . . . . . . . . . . . 5
Guarantor . . . . . . . . . . . . . . . . . . 5
Guarantor Obligations . . . . . . . . . . . . 6
Guarantor Request or Guarantor Order . . . . 6
Holder . . . . . . . . . . . . . . . . . . . 6
Indebtedness . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . 7
interest . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . 7
Interest Rate Agreement . . . . . . . . . . . 7
Lien . . . . . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . 7
Notice of Default . . . . . . . . . . . . . . 7
Officer . . . . . . . . . . . . . . . . . . . 7
Officer's Certificate . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . 9
Periodic Offering . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . 9
possessions . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . 9
Principal Property . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . 10
Repayment Date . . . . . . . . . . . . . . 10
Repayment Price . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . 10
Restricted Subsidiary . . . . . . . . . . . 11
Securities . . . . . . . . . . . . . . . . 11
Security Register and Security Registrar . 11
Senior Debt Indenture . . . . . . . . . . . 11
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iii
PAGE
----
Senior Debt Securities . . . . . . . . . . . . . . 11
Senior Obligations . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . 12
Specified Currency . . . . . . . . . . . . . . . . 12
Stated Maturity . . . . . . . . . . . . . . . . . . 12
Subsidiary . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act or TIA . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . 12
United States . . . . . . . . . . . . . . . . . . . 12
United States Person . . . . . . . . . . . . . . . 12
U.S. Depositary . . . . . . . . . . . . . . . . . . 13
U.S. Government Obligations . . . . . . . . . . . . 13
Vice President . . . . . . . . . . . . . . . . . . 13
Voting Stock . . . . . . . . . . . . . . . . . . . 13
Yield to Maturity . . . . . . . . . . . . . . . . . 13
Section 102. Compliance Certificates and Opinions . . . . . . . 14
Section 103. Form of Documents Delivered to Trustee . . . . . . 14
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . 15
Section 105. Notices, Etc., to Trustee, Company or Guarantor . . 17
Section 106. Notice to Holders of Securities; Waiver . . . . . . 17
Section 107. Language of Notices, Etc. . . . . . . . . . . . . . 19
Section 108. Trust Indenture Act . . . . . . . . . . . . . . . . 19
Section 109. Effect of Headings and Table of Contents . . . . . 19
Section 110. Successors and Assigns . . . . . . . . . . . . . . 19
Section 111. Separability Clause . . . . . . . . . . . . . . . 19
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . 19
Section 113. Governing Law . . . . . . . . . . . . . . . . . . 20
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . 20
Section 115. Securities not "Senior Guarantor Obligations" . . . 20
Section 116. Submission to Jurisdiction; Appointment of
Agent for Service . . . . . . . . . . . . . . . . . 20
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . 21
Section 202. Form of Trustee's Certificate of Authentication . . 22
Section 203. Securities in Global Form . . . . . . . . . . . . . 23
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iv
PAGE
----
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited, Issuable in Series . . . . . . . . . 24
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . 28
Section 303. Execution, Authentication, Delivery and Dating . . . . 28
Section 304. Temporary Securities . . . . . . . . . . . . . . . . 31
Section 305. Registration, Registration of Transfer and Exchange . 34
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons . . . . . . . . . . . . . . . . . . . . . 38
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset .. . . . . . . . . . . . . . . 39
Section 308. Optional Extension of Stated Maturity .. . . . . . . . 42
Section 309. Persons Deemed Owners . . . . . . . . . . . . . . . . 43
Section 310. Cancellation . . . . . . . . . . . . . . . . . . . . . 44
Section 311. Computation of Interest . . . . . . . . . . . . . . . 45
Section 312. Judgments . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . . . . . 45
Section 402. Application of Trust Money . . . . . . . . . . . . . . 47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default .. . . . . . . . . . . . . . . . . . 48
Section 502. Acceleration of Maturity; Rescission and Annulment . . 50
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 51
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . 52
Section 505. Trustee May Enforce Claims Without Possession of
Securities .. . . . . . . . . . . . . . . . . . . . . 53
Section 506. Application of Money Collected . . . . . . . . . . . . 54
Section 507. Limitation on Suits .. . . . . . . . . . . . . . . . . 54
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 55
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
v
PAGE
----
Section 509. Restoration of Rights and Remedies . . . . .. . . . . . 55
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . 56
Section 511. Delay or Omission Not Waiver .. . . . . . . . . . . . . 56
Section 512. Control by Holders .. . . . . . . . . . . . . . . . . . 56
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 57
Section 514. Waiver of Stay or Extension Laws . . . . . . . . . . . 57
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults . . . . . . . . . . . . . . . . . . 57
Section 602. Certain Rights of Trustee . . . . . . . . . . . . . . . 58
Section 603. Not Responsible for Recitals or Issuance of Securities. 59
Section 604. May Hold Securities .. . . . . . . . . . . . . . . . . 59
Section 605. Money Held in Trust . . . . . . . . . . . . . . . . . . 60
Section 606. Compensation, Reimbursement and Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 607. Corporate Trustee Required; Eligibility . . . . . . . . 61
Section 608. Resignation and Removal; Appointment of Successor . . . 61
Section 609. Acceptance of Appointment by Successor . . . . . . . . 63
Section 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 64
Section 611. Appointment of Authenticating Agent . . . . . . . . . . 65
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Disclosure of Names and Addresses of Holders . . . . . 67
Section 702. Reports by Trustee . . . . . . . . . . . . . . . . . . 67
Section 703. Reports by Company and the Guarantor . . . . . . . . . 67
ARTICLE EIGHT
[Intentionally Omitted]
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vi
PAGE
----
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders . . 68
Section 902. Supplemental Indentures with Consent of Holders . . . 69
Section 903. Execution of Supplemental Indentures . . . . . . . . . 71
Section 904. Effect of Supplemental Indentures . . . . . . . . . . 71
Section 905. Conformity with Trust Indenture Act. . . . . . . . . . 71
Section 906. Reference in Securities to Supplemental Indentures . . 71
Section 907. Notice of Supplemental Indenture; Effect on Senior
Obligations .. . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, If Any, and Interest . 72
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . 72
Section 1003. Money for Security Payments to Be Held in Trust . . . 74
Section 1004. Corporate Existence . . . . . . . . . . . . . . . . . 76
Section 1005. Maintenance of Principal Properties . . . . . . . . . 76
Section 1006. Payment of Taxes and Other Claims . . . . . . . . . . 77
Section 1007. Additional Amounts . . . . . . . . . . . . . . . . . . 77
Section 1008. Compliance Certificate . . . . . . . . . . . . . . . . 78
Section 1009. Waiver of Certain Covenants . . . . . . . . . . . . . 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . . . . . . 79
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . 79
Section 1103. Selection by Trustee of Securities to Be Redeemed. . . 80
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 80
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . 81
Section 1106. Securities Payable on Redemption Date . . . . . . . . 82
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . 83
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vii
PAGE
----
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . . . . . . . . 83
Section 1202. Satisfaction of Sinking Fund Payments with Securities 84
Section 1203. Redemption of Securities for Sinking Fund. . . . . . . 84
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Obligations . . . . . 85
Section 1302. Payment Over of Proceeds upon Dissolution, Etc . . . . 85
Section 1303. No Payment When Senior Obligations in Default . . . . 86
Section 1304. Payment Permitted If No Default . . . . . . . . . . . 88
Section 1305. Subrogation to Rights of Holders of Senior Obligations 88
Section 1306. Provisions Solely to Define Relative Rights . . . . . 88
Section 1307. Trustee to Effectuate Subordination . . . . . . . . . 89
Section 1308. No Waiver of Subordination Provisions . . . . . . . . 89
Section 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . 90
Section 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 91
Section 1311. Rights of Trustee as a Holder of Senior Obligations;
Preservation of Trustee's Rights . . . . . . . . . . . 91
Section 1312. Article Applicable to Paying Agents . . . . . . . . . 91
Section 1313. Trustee Not Fiduciary for Holders of Senior
Obligations . . . . . . . . . . . . . . . . . . . . . 91
Section 1314. No Suspension of Remedies . . . . . . . . . . . . . . 92
Section 1315. Article Thirteen Not to Prevent Events of Default. . . 92
Section 1316. Notices to Agent Bank . . . . . . . . . . . . . . . . 92
Section 1317. Inapplicability of this Article Thirteen to Certain
Trustee Monies and Certain Payments . . . . . . . . . 93
ARTICLE FOURTEEN
SUBORDINATED GUARANTEES
Section 1401. Subordinated Guarantees . . . . . . . . . . . . . . . 93
Section 1402. Execution and Delivery of Guarantees . . . . . . . . . 95
Section 1403. Agreement to Subordinate Guarantees . . . . . . . . . 95
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
viii
PAGE
----
Section 1404. Payment Over of Proceeds Upon Dissolution, Etc. . . . 96
Section 1405. Default on Senior Obligations . . . . . . . . . . . . 97
Section 1406. Notices by Guarantor . . . . . . . . . . . . . . . . . 98
Section 1407. Subrogation of Securityholders and Guarantor . . . . . 98
Section 1408. Relative Rights Under Subordinated Guarantees . . . . 99
Section 1409. Subordination May Not Be Impaired by Guarantor . . . 99
Section 1410. Waivers by Guarantor . . . . . . . . . . . . . . . . . 99
Section 1411. Covenant Compliance by Guarantor . . . . . . . . . . . 100
Section 1412. Rights of Trustee and Paying Agent in Respect of
Subordinated Guarantees . . . . . . . . . . . . . . . 100
Section 1413. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 101
Section 1414. Rights of Trustee as a Holder of Senior Obligations
of the Guarantor; Preservation of Trustee's Rights . . 101
Section 1415. Article Applicable to Paying Agents . . . . . . . . . 101
Section 1416. Distribution or Notice to Representative by the
Company and Guarantor . . . . . . . . . . . . . . . . 102
Section 1417. Reliance by Holders of Senior Obligations of the
Guarantor on Subordination Provisions . . . . . . . . 102
Section 1418. Payment in Full . . . . . . . . . . . . . . . . . . . 102
Section 1419. No Suspension of Remedies . . . . . . . . . . . . . . 102
Section 1420. Article Fourteen Not to Prevent Events of Default. . . 102
Section 1421. Inapplicability of Subordination Provisions to Certain
Trust Monies and Certain Payments . . . . . . . . . . 103
Section 1422. Limitation of Guarantor's Liability . . . . . . . . . 103
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability of Article . . . . . . . . . . . . . . . 103
Section 1502. Repayment of Securities . . . . . . . . . . . . . . . 103
Section 1503. Exercise of Option . . . . . . . . . . . . . . . . . . 104
Section 1504. When Securities Presented for Repayment Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . 104
Section 1505. Securities Repaid in Part . . . . . . . . . . . . . . 105
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
ix
PAGE
----
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1601. Purposes for Which Meetings May Be Called . . . . . . 106
Section 1602. Call, Notice and Place of Meetings . . . . . . . . . 106
Section 1603. Persons Entitled to Vote at Meetings . . . . . . . . 106
Section 1604. Quorum; Action . 107
Section 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . 108
Section 1606. Counting Votes and Recording Action of Meetings . . . 109
ARTICLE SEVENTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1701. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . 109
Section 1702. Defeasance and Discharge . . . . . . . . . . . . . . 109
Section 1703. Covenant Defeasance . . . . . . . . . . . . . . . . . 110
Section 1704. Conditions to Defeasance or Covenant Defeasance . . . 111
Section 1705. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . . 113
Section 1706. Reinstatement . . . . . . . . . . . . . . . . . . . 113
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Exhibit A Forms of Certification . . . . . . . . . . . . . . . . . . . A-1
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of , 1995, among
-------------------------------
Viacom Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 1515 Broadway, New York, New York 10036, Viacom International Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Guarantor"), having its principal office at 1515
Broadway, New York, New York 10036, and The First National Bank of Boston, a
national banking association duly organized and existing under the laws of
the United States of America, trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this
Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
RECITAL OF THE GUARANTOR
The Guarantor desires with respect to the Securities of certain
series issued hereunder to make the Guarantees provided for herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of a
series thereof, as follows:
2
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:
(a) 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;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) 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
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in Article Three are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1007.
"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,
3
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 Bank" means any agent or agents for Banks from time to time
under any Credit Agreement, or any successor agent or agents thereto.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"Banks" means the lenders from time to time who are parties to any
Credit Agreement.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors", when used with reference to the Company or
the Guarantor, means either the board of directors, or any duly authorized
committee of that board, of the Company or the Guarantor, as the case may be.
"Board Resolution", when used with reference to the Company or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to
close.
"Capitalized Lease" means any obligation of a Person to pay rent or
other amounts incurred with respect to real property or equipment acquired or
leased by such Person and used in its business that is required to be
recorded as a capital lease in
4
accordance with generally accepted accounting principles consistently applied
as in effect from time to time.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of any supplemental indenture or
Officers' Certificate, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by one Officer of the Company, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee,
at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is
located at 150 Royall Street, Mail Stop 45-02-15, Canton, Massachusetts
02021, except that with respect to presentation of Securities for payment or
for registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"corporation" means a corporation, association, company, joint-
stock company, limited liability company or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Credit Agreement" means any credit agreement under which the
Company is a borrower, in the principal amount of at least $100 million.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement relating to
fluctuations in currency values.
"Default" means any event or condition which is, or after notice or
passage of time or both would be, an Event of Default.
5
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Euro-clear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as the operator of the Euro-clear System.
"Euro Security" means any Bearer Security, any Security initially
represented by a Security in temporary global form exchangeable for Bearer
Securities and any Security in permanent global form exchangeable for Bearer
Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant
to Section 301.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantees set forth in Section 1401.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of any supplemental indenture
or Officers' Certificate, and thereafter "Guarantor" shall mean such
successor Person.
"Guarantor Obligations" shall have the meaning
provided in Section 1403.
"Guarantor Request" or "Guarantor Order" means a written request or
order signed in the name of the Guarantor by one Officer of the Guarantor,
and delivered to the Trustee.
"Holder", when used with respect to any Security, means, in the
case of a Registered Security, the Person in whose name the Security is
registered in the Security Register, and in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the
bearer thereof.
6
"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 and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of
any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
7
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement relating to fluctuations in interest rates .
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, repayment at
the option of the Holder or otherwise.
"Notice of Default" shall have the meaning provided in Section 501.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary, any Assistant Secretary or the
Controller of the Company or the Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any Officer
of the Company or the Guarantor, as the case may be, in his or her capacity
as such Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
General Counsel for the Company or the Guarantor, as the case may be, and who
shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to Securities or any series
of any Securities, means, as of the date of determination, all Securities or
all Securities of such series, as the case may be, theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company or the Guarantor (if the
Company or the Guarantor, as the case may be, shall act as Paying Agent)
for the Holders of such Securities and any coupons appertaining thereto;
8
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) to the extent provided in Article Seventeen, (x)
Securities with respect to which the Company has effected defeasance
pursuant to Section 1702 and (y) solely for the limited purpose set
forth in Section 1703, Securities with respect to which the Company has
affected covenant defeasance pursuant to such Section 1703; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, and for the purpose
of making the calculations required by TIA Section 313, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security
denominated in a foreign currency or currency unit shall be the U.S. dollar
equivalent, determined as of the date of original issuance of such Security
in accordance with Section 301 hereof, of the principal amount of such
Security (or, in the case of an Original Issue Discount Security denominated
in a foreign currency or currency unit, the U.S. dollar equivalent,
determined as of the date of original issuance of such Security, of the
amount determined as provided in (i) above), (iii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities beneficially owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so beneficially owned shall be so
disregarded. Securities so beneficially owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
9
"Paying Agent" means any Person (including the Company or the
Guarantor acting as Paying Agent) authorized by the Company to pay the
principal of (and premium, if any, on) and interest on any Securities on
behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate
or rates of interest thereon, if any, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to
be determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof, or any other entity.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the United States) where the principal of (and
premium, if any, on) and interest on such Securities are payable as specified
as contemplated by Sections 301 and 1002.
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or
a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, lost, destroyed
or stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains, as the case may be.
"Principal Property" means any parcel of real property and related
fixtures or improvements (other than telecommunications equipment, including,
without limitation, satellite transponders) owned by the Company, the
Guarantor or any wholly owned Subsidiary of the Company and located in the
United States, the aggregate book value of which on the date of determination
exceeds $500 million, other than any such real property and related fixtures
or improvements, which, as determined in good faith by the Board of Directors
of the Company, is not of material importance to the total business conducted
by the Company and its Subsidiaries, taken as a whole.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
10
"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 registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" has the meaning specified in Section 1502.
"Repayment Price" has the meaning specified in Section 1502.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a corporation all of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more of its Subsidiaries, or by the Company and one or more of its
Subsidiaries, which is incorporated under the laws of a State of the United
States, and which owns a Principal Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt Indenture" means the Indenture to be dated on or after
the date of this Indenture among the Company, the Guarantor and the Trustee
relating to the Senior Debt Securities described in the Company's and the
Guarantor's Registration Statement on Form S-3 (File No. 33-53485) and
substantially in the form of exhibit 4.1 to such
11
Registration Statement, as such Indenture may be amended or supplemented from
time to time.
"Senior Debt Securities" means any of the Company's Senior Debt
Securities issued pursuant to the Senior Debt Indenture.
"Senior Obligations" of any Person means (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 obligation,
contingent or otherwise, of such Person in respect of letters of credit or
bankers' acceptances or other similar instruments (including any
reimbursement obligation of such Person with respect thereto), (iv) any
obligation of such Person under Capitalized Leases, (v) any obligation of
such Person under any Interest Rate Agreements or any Currency Agreements and
(vi) any guarantee of such Person of obligations of any third party
(including, without limitation, any Affiliate of such Person) of the
type set forth in any of clauses (i) through (v) above, and in the case of
each of clauses (i) through (vi) above, whether such obligation and/or
instrument is outstanding on the date of execution of the this Indenture or
thereafter created, incurred or assumed; provided, however, that (I) "Senior
Obligations" of such Person shall not include (1) any obligation of such
Person to any Subsidiary of such Person or to any Person with respect to
which such Person is a Subsidiary; (2) any obligation of such Person of the
type set forth in any of clauses (i) through (vi) above which is by its terms
subordinate or junior in any respect to any other obligation of such Person of
any such type or (3) any obligation of such Person where the instrument
creating or evidencing such obligation or pursuant to which the same is
outstanding expressly provides that such obligation shall not be senior in
right of payment to the Securities and (II) "Senior Obligations" of such
Person shall include the principal, premium, if any, and interest on, any
obligations of the type set forth in any of clauses (i) through (vi) above
(and not excluded from the scope of "Senior Obligations" pursuant to clause
(I) above).
"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.
"Specified Currency" has the meaning specified in Section 312.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
"Subsidiary" of any Person means (i) a corporation a majority of
the outstanding Voting Stock of which is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other
than a corporation), including, without limitation, a partnership or joint
venture, in which such Person, one or more Subsidiaries thereof or such
Person and one or more Subsidiaries thereof, directly or indirectly, at the
date of determination thereof, has at least majority ownership interest
entitled to vote in the
12
election of directors, managers or trustees thereof (or other Persons
performing similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
provided, however, that, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
only the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States and any
estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
"U.S. Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Securities of any
series shall mean the U.S. Depositary with respect to the Securities of such
series.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by, and acting as an agency or instrumentality of, the United
States of America the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized to
--------
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by such custodian in respect of the U.S.
Government Obligation or the
13
specific payment of principal of or interest on the U.S. Government
obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company, the
Guarantor or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title "Vice
President".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture (other than in connection
with the delivery of any Security offered in a Periodic Offering to the
Trustee for authentication pursuant to Section 303), the Company or the
Guarantor, as the case may be, shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
14
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or the Guarantor, as the case may be,
stating that the information with respect to such factual matters is in the
possession of the Company or the Guarantor, as the case may be, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be
given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the
15
provisions of Article Sixteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to
the Company or the Guarantor or to all of them. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1606.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee, the
Company and the Guarantor may assume that such ownership of any Bearer
Security continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (2) such
Bearer Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company or the Guarantor shall solicit from the Holders
of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver
16
or other Act, the Company or the Guarantor, as the case may be, may, at its
option, by or pursuant to Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company or the Guarantor, as the case may be, shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Company or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 105. Notices, Etc., to Trustee, Company or Guarantor
-----------------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished, filed or mailed, first class postage prepaid, in writing to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration; or
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company or the Guarantor, as the case may be, addressed
to it at the address of its principal office specified in the first
paragraph of this Indenture, to the attention of its Secretary, or at
any other address previously furnished in writing to the Trustee by the
Company or the Guarantor, as the case may be.
17
Any notice or communication by the Company or the Trustee to any
Agent Bank shall be given in accordance with Section 1316.
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Registered Securities of any
event by the Company, the Guarantor or the Trustee,
(1) such notice shall be sufficiently given to Holders of
Registered Securities (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at the address of such Holder as it appears in
the Security Register, not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such publication
to be not earlier than the earliest date, and the second such
publication to be not later than the latest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder; provided that
this paragraph shall not apply to any notice required by the Trust Indenture
Act to be transmitted by mail. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect
to other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
Any notice mailed to a Holder of Registered Securities in the
manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice.
Any notice to Holders of Bearer Securities shall be deemed to have been given
on the date of the first such publication referred to in (2) above.
18
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 107. Language of Notices, Etc.
------------------------
Any request, demand, authorization, direction, notice, consent,
proxy or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
Section 108. Trust Indenture Act.
-------------------
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
Section 109. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company or
the Guarantor shall bind its respective successors and assigns, whether so
expressed or not.
19
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities, the
Guarantees or the coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, the Guarantees or
the coupons, express or implied, shall give to any Person, other than the
parties hereto, any Authenticating Agent, any Paying Agent, any Security
Register and their successors hereunder, the Holders of Securities, the
Guarantees or coupons and (to the extent expressly provided herein) the
holders of Senior Obligations of the Company and the Guarantor, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
-------------
This Indenture, the Securities, the coupons and, if issued, the
Guarantees shall be governed by and construed in accordance with the laws of
the State of New York.
Section 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of any Security or coupon other than
a provision in the Securities of any series which specifically states that
such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date or sinking fund payment date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
Section 115. Securities not "Senior Guarantor Obligations".
---------------------------------------------
Neither the Securities nor any coupons appertaining thereto shall
be or be deemed to be a "Senior Guarantor Obligation" as defined in and for
the purposes of the Indenture dated as of September 15, 1991 among Viacom
International Inc., as issuer, the Company, as guarantor, and The Bank of New
York, as trustee, as supplemented ("the Viacom International Indenture").
The Guarantor Obligations of Viacom International hereunder shall not be or
be deemed to be "Senior Indebtedness" as defined in the Viacom International
Indenture.
20
Section 116. Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service.
-------
The Company and, if any Guarantees are issued, the Guarantor each
hereby irrevocably submit to the non-exclusive jurisdiction of any New York
state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture, the Securities of any
series or, with respect to the Guarantor, the Guarantees, and the Company and
the Guarantor hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such New York state or
federal court. The Company and the Guarantor hereby irrevocably waive, to
the fullest extent they may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Company and the
Guarantor agree that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
So long as any Securities remain Outstanding, the Company, and so
long as any Guarantees remain outstanding, the Guarantor, will at all times
have its principal executive office in the Borough of Manhattan, The City of
New York, or an authorized agent in the Borough of Manhattan, The City of New
York, where or upon whom process may be served in any legal action or
proceeding arising out of or relating to the Indenture, the Securities of any
series or, with respect to the Guarantor, the Guarantees. Service of
process upon such agent and written notice of such service mailed or
delivered to the Company or the Guarantor shall to the extent permitted by
law be deemed in every respect effective service of process upon the Company
or the Guarantor, as the case may be, in any such legal action or proceeding.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Registered Securities, if any, of each series, the Bearer
Securities, if any, of each series and related coupons, the temporary global
Securities of each series, if any, the permanent global Securities of each
series, if any, and the Guarantees, if any, to be endorsed thereon shall be
in substantially the forms as shall be established by or pursuant to a Board
Resolution of the Company or, with respect to the Guarantees, the Guarantor,
as the case may be, or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange or applicable tax law or as may, consistently
herewith, be determined by the officers executing such Securities, including
the Guarantees, if any, to be endorsed thereon, or coupons, as evidenced by
their execution of the Securities.
21
If the forms of Securities, including the Guarantees, if any, to be endorsed
thereon, or coupons of any series are established by action taken pursuant to
a Board Resolution of the Company or the Guarantor, as the case may be, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as the
case may be, and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities or coupons. Any portion of the text of any Security may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall
be in substantially the form set forth in this Article.
The definitive Securities, including the Guarantees, if any, to be
endorsed thereon, and coupons, if any, shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, Guarantees or
coupons, as evidenced by their execution of such Securities, Guarantees or
coupons.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificates of
authentication shall be in substantially the following form:
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON, as
Trustee
By
-----------------------------------
Authorized Signatory
22
Section 203. Securities in Global Form.
-------------------------
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee or the Security
Registrar in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or Section 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee or the
Security Registrar shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
or the Security Registrar the Security in global form together with written
instructions (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
and any premium and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Guarantor (if
Guarantees are issued), the Trustee and any agent of the Company, the
Guarantor (if Guarantees are issued) and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a
permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euro-clear or Cedel, S.A.
23
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited, Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
There shall be established in or pursuant to one or more Board
Resolutions of the Company or pursuant to authority granted by one or more
Board Resolutions of the Company and, subject to Section 303, set forth in,
or determined in the manner provided in, an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1505 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 is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which any such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date, if any, for any interest payable on any
Registered Security on any Interest Payment Date, or the method by which
such date or dates shall be determined, and the basis upon which
interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
Canton, Massachusetts, where the principal of (and premium, if any, on)
and any interest on Securities of the series shall be payable (which
in the case of Euro Securities shall be outside the United States), any
Registered Securities of the series may be surrendered for registration
of transfer,
24
Securities of the series may be surrendered for exchange and, if
different than the location specified in Section 105, the place or
places where notices or demands to or upon the Company or, if
applicable, the Guarantor in respect of the Securities of the series and
this Indenture may be served;
(6) the period or periods within which, the price or prices at
which and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable, and if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion, or
the manner of calculation of such portion, of the principal amount of
any Securities of the series that shall be payable upon acceleration of
the Maturity thereof pursuant to Section 502, upon redemption of the
Securities of the series which are redeemable before their Stated
Maturity, upon surrender for repayment at the option of the Holder, or
which the Trustee shall be entitled to claim pursuant to Section 504;
(11) the currency or currencies, including currency units, in which
payment of the principal of (and premium, if any, on) and interest, if
any, on the Securities of the series shall be payable if other than the
currency of the United States of America;
(12) whether the amount of payments of principal of (and premium,
if any, on) and interest, if any, on the Securities of the series may be
determined with reference to an index, and the manner in which such
amounts shall be determined;
(13) if the principal of (and premium, if any, on) and interest, if
any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a currency or currencies,
including currency units, other than that or those in which the
Securities are denominated or stated to be payable, the currency or
currencies in which payment of the principal of (and premium, if any,
on) and interest
25
on Securities of such series as to which such election is made shall be
payable, and the period or periods within which and the terms and
conditions upon which such election may be made;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in lieu
of the provisions of Article Seventeen that shall be applicable to the
Securities of the series, and the obligations, if any, under this
Indenture to which the provisions of Section 1703 shall apply;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of, or additions to the
Events of Default or covenants of the Company or, if applicable, the
Guarantor with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form with or without coupons and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of the series, and the
circumstances under which and the place or places where such exchanges
may be made and if Securities of the series are to be issuable in global
form, the identity of any initial depository therefor;
(19) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Record Date for such interest, the manner in
which, or the Person to whom, any interest on
26
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304
and the extent to which, or the manner in which, any interest payable on
a permanent global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 307;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(24) whether Securities of or within the series are to be guaranteed
by the Guarantor and any modification of the terms of the Guarantees
as set forth in Article 14 hereof; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture) including,
without limitation, the terms, if any, of any exchangeability or
prepayment provisions, the price or prices (expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be
issued and any modifications of the definitions set forth herein.
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officer's Certificate referred to above or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
27
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture referred to above may provide general
terms or parameters for Securities of such series and provide either that the
specific terms of particular Securities of such series shall be specified in
a Company Order or that such terms shall be determined by the Company in
accordance with other procedures specified in a Company Order as contemplated
by the third paragraph of Section 303.
Section 302. Denominations.
-------------
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, any Registered Securities of a series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and any Bearer Securities of a series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in the denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman of the Board or the Vice
Chairman of the Board, or its President, or one of its Executive Vice
Presidents or Vice Presidents, or by its Treasurer or one of its Assistant
Treasurers and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities or coupons may be
the manual or facsimile signature of such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities and coupons bearing the manual or facsimile signatures
of individuals who were the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together
with any coupons appertaining thereto, executed by the Company and (if
Securities of such series were specified as contemplated by Section 301
to be guaranteed by the Guarantor) having endorsed thereon Guarantees duly
executed by the Guarantor, to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities, and
the Trustee in accordance with such Company Order shall authenticate and
deliver such Securities;
28
provided, however, that, in the case of Securities offered in a Periodic
Offering, the Trustee shall authenticate and deliver such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions
from the Company or its duly authorized agents, promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series; provided further, however, that,
in connection with its original issuance, no Euro Security shall be mailed or
otherwise delivered to any location in the United States; and provided
further, however, that a Euro Security (other than a Security in temporary
global form) may be delivered in connection with its original issuance only
if the Person entitled to physical delivery of such Euro Security (which, in
the case of a Euro Security to be received in exchange for all or a portion
of a Security in temporary global form, shall be the account holder with
Euro-clear or Cedel S.A. to whose account all or such portion of such
Security in temporary global form has been credited) shall have furnished a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date. If any Security shall be
represented by a permanent global Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion
of a temporary global Security shall be deemed to be physical delivery in
connection with the original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and
cancelled. If not all the Securities of any series are to be issued at one
time and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Company Order may set forth the procedures
acceptable to the Trustee for the issuance of such Securities and determining
terms of particular Securities of such series such as interest rate, maturity
date, date of issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any
related coupons, or the form of any Guarantees endorsed thereon, have been
established in or pursuant to one or more Board Resolutions of the Company or
the Guarantor, as the case may be, as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Sections 315(a) through 315(d))
shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any such
Guarantees to be endorsed thereon and any coupons have been established
in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been,
or in the case of Securities of a series offered in a Periodic Offering,
will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities of a
29
series offered in a Periodic Offering, to any conditions specified in
such Opinion of Counsel; and
(c) that such Securities, together with any Guarantees endorsed
thereon and any coupons appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and the
Guarantor, respectively, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles and to such other
qualifications as such counsel shall conclude do not materially affect
the rights of Holders of such Securities, such Guarantees and any
coupons.
Notwithstanding the provisions of Section 301 and of the two
preceding paragraphs, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraphs at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
The Trustee shall not be required to authenticate and deliver any
such Securities, if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities or as to the authorization by the Guarantor of any
Guarantee endorsed thereon, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Sections 201 and 301
and this Section, as applicable, in connection with the first authentication
of Securities of such series.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued except as
otherwise provided pursuant to Section 301 in connection with the Securities
of any series.
No Security, no Guarantee endorsed thereon and no coupon
appertaining thereto shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security,
or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature of an authorized officer, and such certificate
30
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.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, and, if applicable, having endorsed thereon
Guarantees duly executed by the Guarantor substantially of the tenor of the
definitive Guarantees, in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities, Guarantees or coupons may determine, as
conclusively evidenced by their execution of such Securities, Guarantees or
coupons, as the case may be. In the case of any series issuable as Bearer
Securities, such temporary Securities shall be delivered only in compliance
with the conditions set forth in Section 303 and may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company maintained
pursuant to Section 1002 in a Place of Payment for such series for the
purpose of exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations,
having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided
further, however, that a
31
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.
If temporary Securities of any series are issued in global form,
any such temporary global Security shall, unless otherwise provided therein,
be delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and Cedel S.A., for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than 15 days
before the date specified in, or determined pursuant to the terms of, any
such temporary global Security of a series (the "Exchange Date"), the Company
shall deliver to the Trustee definitive Securities of that series, in
aggregate principal amount equal to the principal amount of such temporary
global Security and, if applicable, having endorsed thereon Guarantees duly
executed by the Guarantor, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be presented and surrendered by
the Common Depositary to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole or from time
to time in part, for definitive Securities of such series without charge and
the Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged
and, if applicable, having endorsed thereon Guarantees duly executed by the
Guarantor; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary,
such temporary global Security must be accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euro-clear as to the portion
of such temporary global Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent date and signed by
Cedel S.A. as to the portion of such temporary global Security held for its
account then to be exchanged, each in the form set forth in Exhibit A-2 to
this Indenture (or in such other form as may be established pursuant to
Section 301). The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor, and, if applicable, having endorsed thereon
Guarantees duly executed by the Guarantor, upon the receipt by Euro-clear
32
or Cedel S.A., as the case may be, after the Exchange Date of a certificate
in the form set forth in Exhibit A-1 to this Indenture (or such other form as
may be established pursuant to Section 301), signed by the account holder and
dated no earlier than 15 days prior to the date on which Euro-clear or Cedel
S.A., as the case may be, furnishes to the Common Depositary in accordance
with the preceding paragraph a certificate in the form set forth in Exhibit
A-2 to this Indenture (or such other form as may be established pursuant to
Section 301) that relates to the interest to be exchanged for definitive
Securities. Copies of the certificate in the form set forth in Exhibit A-1
to this Indenture (or such other form as may be established pursuant to
Section 301) shall be available from the offices of Euro-clear and Cedel
S.A., the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Securities in person at the offices of Euro-clear
or Cedel S.A. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on any Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euro-clear and Cedel S.A. on such Interest Payment Date upon delivery by
Euro-clear and Cedel S.A. to the Trustee or the applicable Paying Agent of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons for whom Euro-clear or Cedel
S.A., as the case may be, holds such temporary global Security on such
Interest Payment Date and who have each delivered to Euro-clear or Cedel
S.A., as the case may be, a certificate in the form set forth in Exhibit A-1
to this Indenture (or in such other form as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the relevant Interest
Payment Date occurring prior to the Exchange Date. Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series and of
like tenor and, if applicable, having endorsed thereon Guarantees duly
executed by the Guarantor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by
such beneficial owners. Except as otherwise provided in this paragraph, no
payments of principal or interest owing with respect to a beneficial interest
in a temporary global Security will be made unless and until such interest in
such temporary global Security
33
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euro-clear and Cedel S.A. and not paid as herein
provided shall be returned to the Trustee or the applicable Paying Agent
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register for each
series of Securities (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided, and for facilitating exchanges of
temporary global Securities for permanent global Securities or definitive
Securities, or both, or of permanent global Securities for definitive
Securities, or both, as herein provided.
Upon due surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained
pursuant to Section 1002 for such purpose in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination
and of a like aggregate principal amount and tenor, having, if applicable,
endorsed thereon Guarantees duly executed by the Guarantor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at any such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive, having, if applicable, endorsed thereon Guarantees duly
executed by the Guarantor. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Registered Securities,
including Registered Securities received in exchange for Bearer Securities,
may not be exchanged for Bearer Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth, or
determined in the manner provided, in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons (except as
34
provided below) and with all matured coupons in default appertaining thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default, any such permitted
exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them, the
Guarantor and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive,
having, if applicable, endorsed thereon Guarantees duly executed by the
Guarantor.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable pursuant to this Section only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are
entitled to exchange such interests for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver to the
Trustee or the Security Registrar definitive Securities of that series in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company
and, if applicable, having endorsed thereon Guarantees duly executed by the
Guarantor. On or after the earliest date on which such interests may be so
exchanged, in accordance with instructions given by
35
the Company to the Trustee or the Security Registrar and the Common
Depositary or the U.S. Depositary, as the case may be (which instructions
shall be in writing but need not comply with Section 102 or be accompanied by
an Opinion of Counsel), such permanent global Security shall be surrendered
from time to time by the Common Depositary or the U.S. Depositary, as the
case may be, or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, or to the Security Registrar, to be exchanged, in whole or from time
to time in part, for definitive Securities of the same series without charge,
and the Trustee shall authenticate and deliver in accordance with such
instructions, in exchange for each portion of such permanent global Security,
a like aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor and, if applicable, having
endorsed thereon Guarantees duly executed by the Guarantor as the portion of
such permanent global Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the
permanent global Security shall be issuable only in the form in which the
Securities are issuable, as specified as contemplated by Section 301, shall
be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities of that
series and of like tenor for redemption and ending on the relevant Redemption
Date; and provided further that no Bearer Security delivered in exchange for
a portion of a permanent global Security shall be mailed or otherwise
delivered to any location in the United States. Promptly following any such
exchange in part, such permanent global Security shall be returned by the
Trustee or the Security Registrar to the Common Depositary or the U.S.
Depositary, as the case may be, or such other depositary referred to above in
accordance with the Company's instructions. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Trustee or any transfer agent) be
36
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 1505 not involving
any transfer.
In the event of any redemption in part, the Company shall not be
required (i) to issue, register the transfer of or exchange any Security of
any series during the period beginning at the opening of business 15 days
before the selection of Securities of like tenor and of the series of which
such Security is a part for redemption, and ending at the close of business
on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities
of the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption; (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part; (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged
for a Registered Security of that series and of like tenor, provided that
such Registered Security shall be simultaneously surrendered for redemption;
or (iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and
----------------------------------------------------
Coupons.
-------
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount, having, if
applicable, endorsed thereon Guarantees duly executed by the Guarantor,
bearing a number not contemporaneously outstanding and with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company, the Guarantor (if
related Guarantees are issued) and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company, the Guarantor or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall, subject to the
following paragraph, execute and the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost
37
or stolen coupon appertains (with all appurtenant coupons not destroyed, lost
or stolen), a new Security of the same series and of like tenor and principal
amount, having, if applicable, endorsed thereon Guarantees duly executed by
the Guarantor, bearing a number not contemporaneously outstanding and with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or
coupon, as the case may be; provided, however, that principal of and premium,
if any, and interest on Bearer Securities shall, except as otherwise provided
in Section 1002, be payable only at an office or agency located outside the
United States.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, with any Guarantees endorsed
thereon duly executed by the Guarantor, and with any coupons appertaining
thereto, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company and, if applicable, the Guarantor, whether or not
the destroyed, lost or stolen Security and any coupons appertaining thereto,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and any such new Security, and any coupons appertaining thereto,
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series, any
Guarantees endorsed thereon and their coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 307. Payment of Interest; Interest Rights Preserved;
-----------------------------------------------
Optional Interest Reset.
-----------------------
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency
of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered
Security may at the Company's option be paid
38
by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address
of such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to any U.S. Depositary, and/or to each of
Euro-clear and Cedel S.A. with respect to that portion of such permanent
global Security held for its account by the Common Depositary, for the
purpose of permitting such U.S. Depositary and/or each of Euro-clear and
Cedel S.A. to credit the interest received by it in respect of such permanent
global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
defaulted interest and, if applicable, interest on such defaulted interest
(to the extent lawful) at the rate specified in the Securities of such series
(such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice
39
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at the address of such
Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by
the Company on the date or dates specified on the face of such Security (each
an "Optional Reset Date"). The Company may exercise such option with respect
to such Security by notifying the Trustee of such exercise at least 50 but
not more than 60 days prior to an Optional Reset Date for such Note. Not
later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any
such Security a notice (the "Reset Notice") indicating whether the Company
has elected to reset the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable), and if so (i) such new
interest rate (or such new spread or spread multiplier, if applicable) and
(ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such
next Optional Reset Date, to the Stated Maturity Date of such Security (each
such period a "Subsequent Interest Period"), including the date or dates on
which or the period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 106, notice of such higher interest rate (or such
higher spread or spread multiplier, if applicable) to the Holder of such
40
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 Fifteen 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 Stated Maturity.
-------------------------------------
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such
Security (each an "Extension Period") up to but not beyond the date (the
"Final Maturity") set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to the Stated
Maturity of such Security in effect prior to the exercise of such option (the
"Original Stated Maturity"). If the Company exercises such option, the
Trustee shall transmit, in the manner provided for in Section 106, to the
Holder of such Security not later than 40 days prior to the Original Stated
Maturity a notice (the "Extension Notice") indicating (i) the election of the
Company to extend the Stated Maturity, (ii) the new Stated Maturity,
(iii) the interest rate applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will
have the same terms as prior to the transmittal of such Extension Notice.
41
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on
the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on
the Original Stated Maturity once the Company has extended the Maturity
thereof, the Holder must follow the procedures set forth in Article Fifteen
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 the due presentment of a Registered Security for
registration of transfer, the Company, the Guarantor (if a Guarantee is
endorsed on such Registered Security), the Trustee and any agent of the
Company, the Guarantor (if a Guarantee is endorsed on such Registered
Security) or the Trustee may treat the Person in whose name such Registered
Security is registered as the absolute owner of such Registered Security for
the purpose of receiving payment of principal of (and premium, if any, on)
and (subject to Sections 305 and 307) any interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Guarantor (if a Guarantee is endorsed on such
Registered Security), the Trustee or any agent of the Company, the Guarantor
(if a Guarantee is endorsed on such Registered Security) or the Trustee shall
be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Guarantor (if a Guarantee is
endorsed on any such Bearer Security), the Trustee and any agent of the
Company, the Guarantor (if a Guarantee is endorsed on any such Bearer
Security) or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the owner of such Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and, to the
extent permitted by law, none of the Company, the Guarantor (if a Guarantee
is endorsed on such Bearer Security), the Trustee or any agent of the
Company, the Guarantor (if a Guarantee is endorsed on such Bearer Security)
or the Trustee shall be affected by notice to the contrary.
42
None of the Company, the Guarantor, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any temporary or
permanent global Security, nothing herein shall prevent the Company, the
Trustee or, if applicable, the Guarantor, or any agent of the Company, the
Trustee or, if applicable, the Guarantor from giving effect to any written
certification, proxy or other authorization furnished by a Common Depositary
or a U.S. Depositary, as the case may be, or impair, as between a Common
Depositary or a U.S. Depositary and holders of beneficial interests in any
temporary or permanent global Security, as the case may be, the operation of
customary practices governing the exercise of the rights of the Common
Depositary or the U.S. Depositary as Holder of such temporary or permanent
global Security.
Section 310. Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Registered
Securities and matured coupons so delivered shall be promptly cancelled by
the Trustee. All Bearer Securities and unmatured coupons so delivered shall
be promptly cancelled by the Trustee. The Company or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor, as
the case may be, may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company or the Guarantor shall so
acquire any of the Securities, however, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and coupons held by
the Trustee shall be destroyed unless otherwise directed by a Company Order.
Section 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
43
Section 312. Judgments.
---------
If pursuant to Section 301, the provisions of this Section are
established as terms of a series of Securities, the following provisions
shall apply: (a) the obligation, if any, of the Company to pay the principal
of (and premium, if any, on) and interest on Securities of such series in the
currency or currency unit specified pursuant to Section 301 (the "Specified
Currency") shall be of the essence and the Company agrees that, to the extent
permitted under applicable law, judgments in respect of such Securities shall
be given in the Specified Currency; (b) the obligation of the Company to make
payments in the Specified Currency of the principal of (and premium, if any,
on) and interest on such Securities shall, notwithstanding any payment in any
other currency or currency unit (whether pursuant to a judgment or
otherwise), be discharged only to the extent of the amount in the Specified
Currency that the Holder receiving such payment may, in accordance with
normal banking procedures, purchase with the sum paid in such other currency
or currency unit (after any premium and cost of exchange) on the Business Day
in the country of issue of the Specified Currency or, in the case of a
currency unit, in the international banking community, immediately following
the day on which such Holder receives such payment; (c) if the amount in the
Specified Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may
be necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall
continue in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
Except as set forth below, this Indenture shall upon Company
Request cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for, any
surviving rights of tender for repayment at the option of the Holders and
the obligation of the Company and, if applicable, the Guarantor to pay any
Additional Amounts as contemplated by Section 1007) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series (including,
without limitation, the provisions of Article Thirteen and the subordination
provisions of Article Fourteen) when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons
44
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 of Securities and coupons, an amount sufficient to pay
and discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities and coupons which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has irrevocably paid or caused to be irrevocably
paid all other sums payable hereunder by the Company;
(3) the deposit of money in accordance with this Section 401 shall
not be prohibited by the provisions of Article Thirteen or Article
Fourteen hereof at the time of such deposit; and
45
(4) 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 have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee under Section 606 and to any Authenticating Agent under Section
611 and, if money shall have been deposited with the Trustee pursuant to
clause (1)(b) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive any termination of
this Indenture.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company or the Guarantor acting as a Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal of (and premium, if any, on), and interest on the Securities for
whose payment such money has been deposited with the Trustee. Money so held
in trust shall not be subject to the provisions of Article Thirteen or the
subordination provisions of Article Fourteen (including, without limitation,
the provisions of Sections 1403, 1404 and 1405).
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon becomes due
and payable, and continuance of such default for a period of 30 days
whether or not such payment shall be prohibited by the provisions of
Article Thirteen or the subordination provisions of Article Fourteen
hereof; or
46
(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, whether or not
such payment shall be prohibited by the provisions of Article Thirteen
or the subordination provisions of Article Fourteen hereof; 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, and all relevant Agent Banks by the
Trustee or to the Company, the Trustee and all relevant Agent Banks by
the Holders of at least 33 1/3% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company then has outstanding
Indebtedness in excess of $100,000,000 in the aggregate and, if not
already matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated and remains unpaid; or
(5) the entry by a court having jurisdiction in the premises of a
money judgment in an amount in excess of $100,000,000 against the
Company which has become final and not subject to appeal, and the
continuance of any such judgment unstayed, in effect and unpaid for a
period of 60 days; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or, if
Guarantees are issued, the Guarantor of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company 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 of, if Guarantees are issued, the Guarantor under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or, if Guarantees are issued, the Guarantor or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
47
(7) the commencement by the Company or, if Guarantees are issued,
the Guarantor of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company or, if Guarantees are issued, the
Guarantor in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or, if Guarantees are issued, the Guarantor or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due or the taking of
corporate action by the Company or, if Guarantees are issued, the
Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities
of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in Section
501(6) or 501(7)) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 33 1/3% in principal amount of the
Outstanding Securities of that series may, and the Trustee at the request of
such Holders shall, declare immediately due and payable, by a notice in
writing to the Company and, if applicable, the Guarantor (and to the Trustee
if given by Holders) and, if any Credit Agreement is in effect, to the Agent
Bank, the unpaid principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of (and
premium, if any) and accrued interest in respect of each Security then
Outstanding in that series (the "Default Amount"). Upon any such
declaration, the Default Amount shall become due and payable on all
Outstanding Securities of that series (i) if no Credit Agreement is in
effect, immediately, or (ii) if any Credit Agreement is in effect, upon the
first to occur of (a) an acceleration under any such Credit Agreement
(written notice of which the Company shall give to the Trustee as promptly as
practicable upon the occurrence thereof, provided, however, that the Trustee
shall not be deemed to have knowledge of such acceleration unless and until
it receives such written notice) or (b) the fifth Business Day after receipt
by the Company and each Agent Bank of written notice of such declaration
unless (in the absence of an acceleration under any such Credit Agreement) on
or prior to such fifth Business Day the Company shall have discharged or
caused to be discharged the Indebtedness, if any, that is the subject of such
Event of Default or otherwise cured the default relating to such Event of
48
Default and shall have given written notice of such discharge or cure to the
Trustee and the Agent Bank (which notice in the case of an Event of Default
specified in Section 501(4) shall be countersigned by the holders of the
Indebtedness that is the subject of such Event of Default or by a trustee,
fiduciary or agent for such holders). Notwithstanding any other provision of
Section 502, if an Event of Default specified in Section 501(6) or 501(7)
occurs, then the Default Amount on the Securities then Outstanding shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company,
the Trustee and, if applicable, the Guarantor, may rescind and annul such
declaration and its consequences if:
(1) the Company has (without violating the provisions of Article
Thirteen 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
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate 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 the Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities of any series
because an Event of Default specified in
49
Section 501(4) shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof
have rescinded any declaration of acceleration in respect of such
Indebtedness or waived any default thereunder permitting such an
acceleration, and written notice of such discharge, rescission or waiver, as
the case may be, shall have been given to the Trustee by the Company or the
Guarantor and by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 30 days after such declaration of acceleration
in respect of the Securities of that series, and no other Event of Default
has occurred during such 30-day period which has not been cured or waived
during such period.
Section 503. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.
----------
The Company covenants that if
(a) default is made in the payment of any installment of interest
on any Security of any series or any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it (such demand and
payment in the case of Euro Securities to occur only outside the United
States), for the benefit of the Holders of such Securities and any coupons
appertaining thereto, the whole amount then due and payable on such
Securities and coupons of that series for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, the Guarantor (if any related
Guarantees are issued) or any other obligor upon such Securities of that
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, the Guarantor (if any
related Guarantees are issued) or any other obligor upon the Securities of
that series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the
50
rights of the Holders of Securities of that series and any coupons
appertaining thereto by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, the Guarantor (if
Guarantees are issued) or any other obligor upon the Securities of a series
or the property of the Company, the Guarantor (if Guarantees are issued) or
such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities of such series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company or, if
applicable, the Guarantor for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities as
may be specified in the terms of such series, and interest owing and
unpaid in respect of the Securities of such series and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of the Securities of such series
and any coupons appertaining thereto allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same (which
distribution, in the case of Euro Securities, shall occur only outside
the United States);
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of a Security or of a coupon to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to such Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 606.
Subject to Section 902 and unless otherwise provided as
contemplated by Section 301, nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or of a coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
51
coupons or the rights of any such Holder thereof or to authorize the Trustee
to vote in respect of the claim of any such Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the
Securities or any coupon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name and as trustee of
an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such judgment has
been recovered.
Section 506. Application of Money Collected.
------------------------------
Subject to Article Thirteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal (or premium, if any) or interest, upon presentation
of the Securities or coupons, or both, as the case may be (such presentation,
in the case of Euro Securities or coupons, to occur only outside the United
States), and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee hereunder,
including under Section 606;
SECOND: To the payment (such payment, in the case of Euro
Securities, to occur only outside the United States) of the amounts then
due and unpaid for principal of (and premium, if any, on) and any
interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or of any related coupon
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
52
(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 33 1/3% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an
indemnity, reasonably satisfactory to the Trustee, against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of the same series, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
--------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Security or any coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any,
on) and (subject to Section 307) interest on such Security or payment of such
coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date or, in the case
of repayment at the option of the Holder, on the Repayment Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such
53
proceeding, the Company, the Guarantor, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee may refuse to follow any direction which, in the
Opinion of Counsel to the Trustee, is unduly prejudicial to other
Holders of Securities of such series or would subject the Trustee to
personal liability.
54
Section 513. Waiver of Past Defaults.
-----------------------
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series and any coupons appertaining
thereto waive any past default hereunder with respect to Securities of such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any, on) or
interest on any Security of such series or any related coupon, or
(2) in respect of a provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default with respect to Securities of such series arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in
the payment of the principal of (or premium, if any, on) or interest on any
Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so
55
long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided,
further that, in the case of any Default or breach of the character specified
in Section 501(3) with respect to Securities of such series, no such notice
to Holders shall be given until at least 30 days after the occurrence
thereof.
Section 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order or Guarantor Request or Guarantor Order, as the case may
be, or as otherwise expressly provided herein and any resolution of the
Board of Directors of the Company or the Guarantor may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other
56
evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall in good
faith determine to make such further inquiry or investigation, it shall
be entitled upon reasonable notice and at reasonable times during normal
business hours to examine the books, records and premises of the Company
or, if any Guarantees are issued, the Guarantor, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 603. Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities.
----------
The recitals contained herein and in the Securities (except for the
Trustee's certificates of authentication), including any Guarantees endorsed
thereon, and in any coupons, shall be taken as the statements of the Company
or the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that
the statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company and the Guarantor with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
57
Section 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company or the Guarantor, as the case may be.
Section 606. Compensation, Reimbursement and Indemnification of
--------------------------------------------------
Trustee.
-------
The Company agrees:
(a) to pay to the Trustee or any predecessor Trustee from time to
time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee or any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee or such predecessor Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee or any predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of such obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any, on)
or interest, if any, on particular Securities or any coupons.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of a federal, state, territorial or District of Columbia
supervising or examining authority, then, for the purposes of this Section,
the combined capital and
58
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company and, if applicable, the Guarantor. If the instrument of acceptance
by a successor Trustee required by Section 609 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by a Board Resolution delivered
to the Trustee, provided that, contemporaneously therewith (x) the Company
immediately appoints a successor Trustee with respect to the Securities of
such series meeting the requirements of Section 607 hereof and (y) the terms
of Section 609 hereof are complied with in respect of such appointment (the
Trustee being removed hereby agreeing to execute the instrument comtemplated
by Section 609(b) hereof, if applicable, under such circumstances) and
provided further that, no Default with respect to such Securities shall have
occurred and then be continuing at such time, or (ii) Act of the Holders of
not less than a majority in principal amount of the Outstanding Securities
of such series delivered to the Trustee, the Company and, if applicable, the
Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 310(b) after
written request therefor by the Company or the Guarantor or by any
Holder of a Security who for at least six months has been a bona fide
Holder of a Security of the series as to which the Trustee has a
conflicting interest, or
(2) the Trustee shall cease to be eligible under Section 607
hereof and shall fail to resign after written request therefor by the
Company, the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to the Securities, or (ii) subject to TIA Section
315(e), any Holder of a Security
59
who has been a bona fide Holder of a Security for at least six months (and,
in the case of Section 608(d)(1) above, who is a Holder of a Security of the
series as to which the Trustee has a conflicting interest) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 609. If, within one
year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 609, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities of that series and accepted appointment in the manner
required by Section 609, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series to the Holders of Securities of such series in the manner provided for
in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company, the Guarantor and 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,
60
such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the Guarantor, if applicable, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees as
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 definitions of those
terms in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company and,
if applicable, the Guarantor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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Section 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities; and in case at that time any of the Securities
shall not have been authenticated, any successor Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the
name of the successor Trustee; and in all such cases such authentications
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 611. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents (which
may be an Affiliate or Affiliates of the Company) with respect to one or more
series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
or upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of such Authenticating Agent, shall continue to
be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
promptly give notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By: ,
-------------------------------
as Authenticating Agent
By:
-------------------------------
Authorized Signatory
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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 none of the
Company, the Guarantor or the Trustee or any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with TIA
Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).
Section 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the May 15
occurring after the initial issuance of Securities hereunder, the Trustee
shall transmit by mail to the Holders of Securities of any series with
respect to which it acts as Trustee, in the manner and to the extent provided
in TIA Section 313(c), and to the Company and the Guarantor, a brief report
dated as of such May 15 which satisfies the requirements of TIA Section
313(a).
Section 703. Reports by Company and the Guarantor.
------------------------------------
The Company and, so long as any Securities in respect of which
Guarantees have been issued are Outstanding, the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to
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time by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Company or the Guarantor, as the case may be, is not required
to file information, documents or reports pursuant to either of said
Sections, then the Company or the Guarantor, as the case may be, shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations; and
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company and the Guarantor with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations.
The Trustee shall transmit, within 30 days after the filing thereof
with the Trustee, to the Holders of Securities, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company or the Guarantor,
as the case may be, pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of all or any series of Securities and any
related coupons (and if such
65
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
(2) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of (or
premium, if any, on) or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect.
66
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture which affect such series of
Securities or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each such series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or the terms of any sinking
fund or analogous payment with respect to, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or repayment thereof at the option
of the Holder, or change any obligation of the Company to pay Additional
Amounts contemplated by Section 1007 (except as permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue
Discount Security or Indexed Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or upon the redemption thereof or the amount thereof
provable in bankruptcy pursuant to Section 504 or change the coin or
currency in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date, or, in the case of
repayment at the option of the Holder, on or after the Repayment Date),
or modify the provisions of this Indenture with respect to the mandatory
redemption of Securities or repayment of the Securities at the option of
the Holder, or the subordination of the Securities or any Guarantor
Obligations of the Guarantor in a manner adverse to any Holder of any
Securities or any coupons appertaining thereto, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513
and 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with
67
respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance
with the requirements of Sections 609(b) and 901(7), or
(4) reduce the terms and conditions of any obligations of the
Guarantor in respect of the due and punctual payment of the principal
thereof and premium, if any, and interest, if any, thereon, any
Additional Amounts payable under Section 1007 in respect thereof or any
sinking fund or analogous payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
68
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. Notice of Supplemental Indenture; Effect on Senior
--------------------------------------------------
Obligations.
-----------
Promptly after the execution by the Company, the Guarantor, if
applicable, and the Trustee of any supplemental indenture pursuant to the
provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such
supplemental indenture. No supplemental indenture shall adversely affect the
rights of the holders of Senior Obligations of the Company under Article
Thirteen without the consent of the representative of such holders.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, If Any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay, in the currency or currencies, currency unit or units or
composite currency or currencies in which the securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series), the principal of (and premium, if any, on) and
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.
69
Section 1002. Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such
series an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served, which agency initially shall be The First
National Bank of Boston, at 150 Royall Street, Mail Stop 45-02-15, Canton,
Massachusetts 02021, Attention: Corporate Trust Administration. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered 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 the
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
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.
70
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 any 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
Canton, Massachusetts, if (but only if) payment in Dollars of the full amount
of such principal, premium, if any, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal
or effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee and the Holders of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise specified with respect to any Securities as
contemplated by Section 301 with respect to a series of Securities, the
Company hereby designates as a Place of Payment for each series of Securities
the office or agency of the Company in Canton, Massachusetts, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in Canton,
Massachusetts and as its agent to receive all such presentations, surrenders,
notices and demands.
Section 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company or the Guarantor shall at any time act as Paying
Agent with respect to the Securities of any series and any related coupons,
it will, on or before each due date of the principal of (and premium, if any,
on) or any interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum (in the
currency, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)) sufficient to pay
the principal (and premium, if any) or any interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to each due date
of the principal of (and
71
premium, if any, on) or any interest on any Securities of that series,
deposit with a Paying Agent a sum (in the currency, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series)) sufficient to pay the principal (and premium, if
any) or any interest so becoming due, such sum of money to be held in trust
for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent for any series of
Securities (other than the Trustee) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums of money for the payment of the principal of
(and premium, if any, on) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums of
money shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
of money held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company
or the Guarantor, in trust for the payment of the principal of (and premium,
if any, on) or interest on any Security of any series, or any coupon
appertaining thereto, and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company or the Guarantor) shall be
discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general
72
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 any supplemental indentures hereto or Officer's
Certificates creating any series, the Company and, so long as any Securities
in respect of which Guarantees have been issued are Outstanding, the Guarantor
will do or cause to be done all things necessary to preserve and keep in full
force and effect their respective corporate existence, rights (charter and
statutory) and franchises, provided, however, that neither the Company nor
the Guarantor shall be required to preserve any such right or franchise if its
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of its business, and that the loss thereof is not
disadvantageous in any material respect to Holders of the Securities or any
coupons appertaining thereto.
Section 1005. Maintenance of Principal Properties.
-----------------------------------
The Company will cause all Principal Properties used or useful in
the conduct of its business or the business of the Guarantor or Restricted
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Company from discontinuing the maintenance of
any of such properties or prevent or restrict the sale, abandonment or other
disposition of any of such properties if such action is, in the judgment of
the Company, desirable in the conduct of the business of the Company and its
Subsidiaries as a whole, and not disadvantageous in any material respect to
the Holders.
Section 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary of the Company or upon the income,
73
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 by appropriate proceedings.
Section 1007. Additional Amounts.
------------------
If the Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any
tax, assessment or governmental charge ("Additional Amounts"), the Company
will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be so provided by Section
301. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any, on) or interest on, or in
respect of, any Security of a series or payment of any related coupon or the
net proceeds received on the sale or exchange of a Security of a series, such
mention shall be deemed to include mention of the payment of Additional
Amounts provided for by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal
(and premium, if any) is made), and at least 10 days prior to each date of
payment of principal (and premium, if any) or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officer's
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officer's
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of (and premium, if any, on) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States Persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding
shall be required, then such Officer's Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders
of Securities of that series or related coupons and the Company will pay to
the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as
the case may be, shall not so receive the above-mentioned certificate, then
the Trustee or such Paying Agent shall be entitled to (i) assume that no such
withholding or deduction is required with respect to any payment of principal
74
(and premium, if any) or any interest with respect to any Securities of a
series or related coupons until it shall have received a certificate advising
otherwise and (ii) make all payments of principal (and premium, if any) and
interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officer's
Certificate furnished pursuant to this Section or in the event the Trustee
shall not withhold or deduct any sums as a result of the non-receipt of an
Officer's Certificate pursuant to this Section.
Section 1008. Compliance Certificate.
----------------------
(a) The Company and, so long as any Securities in respect of
Guarantees have been issued are Outstanding, the Guarantor each shall deliver
to the Trustee, within 120 days after the end of each fiscal year of the
Company or the Guarantor, as the case may be, a brief certificate from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's or the
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture. For purposes of this Section 1008(a), such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable
upon any officer listed in (a) above becoming aware of (i) any Default, Event
of Default or default in the performance of any covenant, agreement or
condition contained in this Indenture or (ii) any event of default under any
evidence of Senior Obligations of the Company or the Guarantor (other than
with respect to Senior Obligations in the principal amount of less than
$100,000,000), an Officers' Certificate specifying such Default, Event of
Default, default or event of default and what action the Company or the
Guarantor, as the case may be, 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.
75
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by an Officer's Certificate. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed, and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 1103. In the case
of any redemption of Securities of any series (i) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities,
the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate, provided such method complies with
the rules of any national securities exchange or quotation system on which
the Securities are then listed, and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
of Registered Securities of such series; provided, however, that no such
-------- -------
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 301.
76
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106
to the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of a partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as
provided in Section 1106) will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places (which must include the applicable Place
or Places of Payment and which in the case of Bearer Securities shall be
outside the United States) where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from
the Redemption Price unless security or
77
indemnity satisfactory to the Company, the Guarantor, if applicable, the
Trustee and any Paying Agent is furnished, and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company and the Guarantor shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so 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
78
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such
interest; and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company, the Guarantor
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall
have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
yield to Maturity (in the case of Original Issue Discount Securities) set
forth in the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company, the
Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor and
the Trustee duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Registered Security or Securities of the same series and of
like tenor, of any 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.
79
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. The provisions of this
------------------------
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
------------------------------------------
Securities. Subject to Section 1203, in lieu of making all or any
----------
part of any mandatory sinking fund payment with respect to any Securities of
a series in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of such series (other than any previously called for
redemption or presented for repayment at the option of the Holder)
theretofore purchased or otherwise acquired by the Company, together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) receive credit for the principal amount of
previously Outstanding Securities of such series which have been previously
purchased or otherwise acquired by the Company and delivered to the Trustee
by the Company or for Outstanding Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, together in the case of
any Bearer Securities of such series with all unmatured coupons appertaining
thereto, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for
by the terms of such series; provided, however, that such Securities have not
been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, in the currency or currencies,
currency unit or units or composite currency or currencies in which the
securities of such series are
80
payable (except as otherwise specified pursuant to Section 301 for the
securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany
such certificate), the basis for such credit and that such Securities have
not been previously so credited, and whether the Company intends to exercise
its right to make a permitted optional sinking fund payment with respect to
such series. Not more than 60 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Obligations.
--------------------------------------------
The Company covenants and agrees, and each Holder of a Security of
any series or of any coupon appertaining thereto, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Seventeen), the Indebtedness represented by the
Securities and the coupons, if any, appertaining thereto and the payment of
the principal of (and premium, if any, on) and interest on each and all of
the Securities and coupons, if any, appertaining thereto are hereby expressly
made subordinate and subject in right of payment as provided in this Article
to the prior payment in full of all Senior Obligations of the Company; but
the Securities and the coupons, if any, appertaining thereto, the
Indebtedness represented thereby and the payment of the principal of (and
premium, if any) and interest on the Securities and coupons, if any,
appertaining thereto in all respects shall rank equally with, or prior to,
all existing and future unsecured indebtedness (including, without
limitation, Indebtedness) of the Company that is not Senior Obligations of
the Company.
Section 1302. Payment Over of Proceeds upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of
the Company, then and in any such event the holders of Senior Obligations of
the Company shall be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior
81
Obligations of the Company, or provision shall be made for such payment in
cash, before the Holders of the Securities and the coupons, if any,
appertaining thereto are entitled to receive any payment or distribution of
any kind or character on account of principal of (or premium, if any, on) or
interest on the Securities and any coupons appertaining thereto, and to that
end the holders of Senior Obligations of the Company shall be entitled to
receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities and the coupons, if any,
appertaining thereto in any such case, proceeding, dissolution, liquidation
or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security or of any coupon
appertaining thereto shall have received any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities and any coupons
appertaining thereto, before all Senior Obligations of the Company are paid
in full or payment thereof provided for, then and in such event such payment
or distribution shall be held for the benefit of and, upon receipt by the
Trustee of the notice set forth in Section 1309, shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Obligations of the Company remaining unpaid, to the extent necessary
to pay all Senior Obligations of the Company in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Obligations of the Company.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment which are subordinated in
right of payment to all Senior Obligations of the Company which may at the
time be outstanding to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions, if any, set forth
in an Officer's Certificate or supplemental indenture creating any series of
Securities shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Section if the
surviving Person, as part of such consolidation, merger, conveyance or
transfer, complies with the conditions, if any, set forth in such Officer's
Certificate or supplemental indenture.
82
Section 1303. No Payment When Senior Obligations in Default.
---------------------------------------------
If (a) in the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Obligations of the Company beyond any applicable grace period with respect
thereto (a "payment event of default"), or in the event that any event of
default (other than a payment event of default) with respect to any Senior
Obligations of the Company shall have occurred and be continuing and shall
have resulted in such Senior Obligations of the Company becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, or (b) in the event that any event of default (other
than a payment event of default) with respect to any Senior Obligations of
the Company shall have occurred and be continuing permitting the holders of
such Senior Obligations of the Company (or a trustee on behalf of the holders
thereof) to declare such Senior Obligations of the Company due and payable
prior to the date on which it would otherwise have become due and payable,
then no payment, direct or indirect (including any payment which may be
payable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities), shall be made by the
Company on account of principal of (or premium, if any) or interest on the
Securities or on account of the purchase or redemption or other acquisition
of Securities or coupons appertaining thereto (x) in case of any payment or
nonpayment event of default specified in (a), unless and until (A) such event
of default shall have been cured or waived or shall have ceased to exist or
such acceleration shall have been rescinded or annulled or (B) the Senior
Obligations of the Company in respect of which such declaration of
acceleration has occurred is discharged, (y) in case of any nonpayment event
of default specified in (b), from the earlier of the dates the Company and
the Trustee receive written notice of such event of default from an Agent
Bank or any other representative of a holder of Senior Obligations of the
Company until the earlier of (A) 180 days after such date and (B) the date,
if any, on which the Senior Obligations of the Company to which such default
relates are discharged or such default is waived by the holders of such
Senior Obligations of the Company or otherwise cured (provided that further
written notice relating to the same or any other nonpayment event of default
specified in (b) above with respect to the same Senior Obligations of the
Company received by the Company or the Trustee within 12 months after such
receipt shall not be effective for purposes of this clause (y)) or (z) in
case of any payment or nonpayment event of default specified in clause (a) or
(b), as long as any judicial proceeding is pending with respect to such
event.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by
the foregoing provisions of this Section, then and in such event such payment
shall be held for the benefit of and, upon receipt by the Trustee of the
notice set forth in Section 1309, shall be paid over and delivered forthwith
to the appropriate Agent Bank or other representative of such Senior
Obligations of the Company, provided that in the event there are no
outstanding Senior Obligations of the Company under any Credit Agreement,
such payment shall be paid over and delivered to the Company, in each case
for the benefit of the holders of Senior Obligations of the Company, and to
the extent of any such payment over the rights and
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remedies of the Trustee and the Holders of Securities and coupons, and the
obligations of the Company and the Guarantor, if any, shall be reinstated in
full force and effect as if such payment by the Company to the Trustee or
such Holders had never been made.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 (without giving effect to the exclusion from
the applicability of said Section contained in the first sentence of the last
paragraph thereof) would be applicable.
Section 1304. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303, from making payments at any time of
principal of (and premium, if any, on) or interest on the Securities and the
coupons appertaining thereto or from making the deposits contemplated by
Section 401 or Section 1704 hereof.
Section 1305. Subrogation to Rights of Holders of Senior
------------------------------------------
Obligations.
-----------
Subject to the payment in full of all Senior Obligations of the
Company, the Holders of the Securities and coupons, if any, appertaining
thereto shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
Senior Obligations of the Company to the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Obligations of the Company to receive payments and
distributions of cash, property and securities applicable to the Senior
Obligations of the Company until the principal of (and premium, if any, on)
and interest on the Securities and coupons, if any, appertaining thereto
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Obligations of the Company of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Obligations of the Company by Holders of the Securities and coupons or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Obligations of the Company and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Obligations of the Company.
Section 1306. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities and
coupons on the one hand and the holders of Senior Obligations of the Company
on the other hand. Nothing contained in
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this Article or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors and the Holders
of the Securities and coupons, if any, appertaining thereto, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities and coupons, if any, appertaining thereto the principal of
(and premium, if any, on) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms or impair, as
among the Guarantor, its creditors and the Holders of the Securities and
coupons, if any, appertaining thereto, the obligations of the Guarantor under
any Guarantees, which are also absolute and unconditional; (b) affect the
relative rights against the Company of the Holders of the Securities and
coupons and creditors of the Company other than the holders of Senior
Obligations of the Company or affect the relative rights against the
Guarantor of the Holders of the Securities and coupons; or (c) prevent the
Trustee or the Holder of any Security or any coupon from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article, of the holders
of Senior Obligations of the Company (i) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company
referred to in Section 1302, to receive, pursuant to and in accordance with
such Section, cash, property and securities otherwise payable or deliverable
to the Trustee or such Holder, or (ii) under the conditions specified in
Section 1303, to prevent any payment prohibited by such Section.
Section 1307. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security or coupon 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 provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 1308. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Senior
Obligations of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Obligations of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities and coupons, if any, appertaining thereto,
without incurring responsibility to the Holders of the Securities or coupons
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities and coupons to
the holders of Senior Obligations of the Company, do any one or more of the
following: (1)
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change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Obligations of the Company, or otherwise amend
or supplement in any manner Senior Obligations of the Company or any
instrument evidencing the same or any agreement under which Senior
Obligations of the Company are outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Obligations of the Company; (3) release any Person liable in any
manner for the collection of Senior Obligations of the Company; and (4)
exercise or refrain from exercising any rights against the Company and any
other Person.
Section 1309. Notice to Trustee.
-----------------
(a) The Company shall give prompt written notice to the Trustee
and the Agent Bank of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. The Company shall also furnish
to the appropriate Agent Bank copies of all notices provided to the Trustee
pursuant to Section 703. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article, unless and until the Trustee shall have received
written notice thereof from the Company, the appropriate Agent Bank or a
holder of Senior Obligations of the Company or from any trustee therefor, and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of TIA Sections 315(a) through 315(d), shall be entitled in all
respects to assume that no such facts exist; provided, however, that, if the
Trustee shall not have received the notice provided for in this Section at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any, on) or interest on any
Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it within
three Business Days prior to such date.
(b) Subject to the provisions of TIA Sections 315(a) through
315(d), 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
Obligations of the Company (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Obligations of the Company (or a
trustee therefor). 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 Obligations of the Company to participate in any payment
or distribution pursuant to this Article, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Obligations of the Company 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, and if such evidence is not furnished, the Trustee and any
Agent Bank may defer any payment to
86
such Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1310. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of TIA Sections
315(a) through 315(d), and the Holders of the Securities and the coupons, if
any, appertaining thereto, 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, receiver, liquidating trustee, custodian, 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, and
the coupons, if any, appertaining thereto, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of Senior Obligations of the Company 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.
Section 1311. Rights of Trustee as a Holder of Senior Obligations;
----------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Obligations of
the Company which may at any time be held by it, to the same extent as any
other holder of Senior Obligations of the Company, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1312. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1311 shall not apply to the Company
or any Affiliates of the Company if it or such Affiliate acts as Paying
Agent.
87
Section 1313. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Obligations.
-----------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Obligations of the Company and shall not be liable to any
such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or coupons or to any other Person cash, property or
securities to which any holders of Senior Obligations of the Company shall be
entitled by virtue of this Article or otherwise.
Section 1314. No Suspension of Remedies.
-------------------------
Nothing contained in this Article Thirteen shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate
the maturity of the Securities pursuant to Article Five or to pursue any
rights or remedies hereunder or under applicable law, except as provided in
Article Five.
Section 1315. Article Thirteen Not to Prevent Events of Default.
-------------------------------------------------
The failure to make payment pursuant to the Securities or the
coupons, if any, appertaining thereto, by reason of any provision in this
Article Thirteen shall not be construed as preventing the occurrence of a
Default or an Event of Default.
Section 1316. Notices to Agent Bank.
---------------------
Any notice or communication by the Company or the Trustee to any
Agent Bank is duly given if in writing and mailed by first-class mail,
postage prepaid, or delivered in person or by telex, telecopies or overnight
air courier guaranteeing next day delivery to such Agent Bank at the address
set forth in the applicable Credit Agreement, or if no such address is so
specified in such Credit Agreement, at its principal office in New York, New
York, or if none, at its principal executive office. Any Agent Bank by
notice to the Company and the Trustee pursuant to Section 105 may designate
additional or different addresses for subsequent notices or communications.
All notices and communications to any Agent Bank shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
If a notice or communication is given in the manner provided above
within the time prescribed, it is duly given, whether or not the Agent Bank
receives it. Notwithstanding any provisions of this Indenture to the
contrary, the Trustee shall have no liability to any Agent Bank based on or
arising from the failure to receive any notice required by or relating to
this Indenture or the Securities.
88
Section 1317. Inapplicability of this Article Thirteen to Certain
---------------------------------------------------
Trustee Monies and Certain Payments.
-----------------------------------
The subordination of the Securities of any series and the coupons,
if any, appertaining thereto provided by this Article Thirteen is expressly
made subject to the provisions of Section 402 and the provisions of
defeasance or covenant defeasance in Article Seventeen and, anything herein
to the contrary notwithstanding, the provisions of this Article Thirteen
shall not apply to any money, U.S. Government Obligations or proceeds thereof
held in trust by the Trustee pursuant to Article Four or Article Seventeen.
Anything herein to the contrary notwithstanding, the provisions of this
Article Thirteen shall not apply to any payments (including, without
limitation, any deposits) by the Guarantor in respect of its Guarantor
Obligations.
ARTICLE FOURTEEN
SUBORDINATED GUARANTEES
Section 1401. Subordinated Guarantees.
-----------------------
If Securities of or within a series are specified, as
contemplated by Section 301, to be guaranteed by the Guarantor, then
the Guarantor hereby fully and unconditionally guarantees to each Holder
of any such Security which is authenticated and delivered by the Trustee
and to each Holder of any coupon appertaining to any such Security, and
to the Trustee on behalf of each such Holder, the due and punctual payment
of the principal of (and premium, if any, on) and interest (including, in
case of default, interest on principal and, to the extent permitted by
applicable law, on overdue interest and including any additional interest
required to be paid according to the terms of any such Security or any coupon
appertaining thereto), if any, on
89
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 provisions
of Section 1403 hereof, and the payment of any Additional Amounts, if any,
provided for with respect to any such Security as described under Section
1007 hereof. 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 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
90
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 1402. Execution and Delivery of Guarantees.
------------------------------------
To evidence its Guarantees with respect to Securities of or within
any series that are specified, as contemplated by Section 301, to be
guaranteed by the Guarantor, the Guarantor hereby agrees to execute the
Guarantees, in a form established pursuant to Section 201, to be endorsed on
each Security of such series authenticated and delivered by the Trustee. Each
such Guarantee shall be executed on behalf of the Guarantor by its Chairman of
the Board, or its Vice Chairman of the Board, or its President, or one of
its Executive Vice Presidents or Vice Presidents, or by its Treasurer or one
of its Assistant Treasurers and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the
Securities upon which such Guarantees are endorsed or did not hold such
offices at the date of such Securities.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor
hereby agrees that its Guarantees set forth in this Article shall remain in
full force and effect notwithstanding any failure to endorse on each Security
a notation of such Guarantee.
Section 1403. Agreement to Subordinate Guarantees.
-----------------------------------
The Guarantor covenants and agrees, and each Holder of a Security
or of any coupon appertaining thereto, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article Fourteen (subject to the provisions of Article Four and
Article Seventeen), the obligations of the Guarantor represented by the
Guarantees established pursuant to this Article Fourteen and the payment of
the principal of (and premium, if any) and interest by the Guarantor on each
and all of the Securities to which a Guarantee relates, as specified as
contemplated by Section 301, in accordance with the terms of the Guarantees
set forth in this Article Fourteen (the "Guarantor Obligations") are hereby
expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Obligations of the Guarantor; but the Guarantor
Obligations in all respects shall rank equally with, or prior to, all
existing and future unsecured indebtedness (including, without limitation,
Indebtedness) of the Guarantor that is not Senior Obligations of the
Guarantor.
Section 1404. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Guarantor or to
its creditors, as such, or to its assets, or (b) any
91
liquidation, dissolution or other winding up of the Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Guarantor, then and in any such
event the holders of Senior Obligations of the Guarantor shall first be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all such Senior Obligations, or provision shall be made for
such payment in cash, before the Holders of the Securities are entitled to
receive any payment on account of principal of (or premium, if any) or
interest on the Securities or any other Guarantor Obligations of the
Guarantor, and to that end the holders of Senior Obligations of the Guarantor
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property
or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of
the Guarantor being subordinated to the payment of the Guarantor Obligations,
which may be payable or deliverable in respect of the Guarantor Obligations
in any such case, proceeding, dissolution, liquidation or other winding up or
event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Guarantor of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Guarantor being subordinated to the payment of
the Guarantor Obligations, before all Senior Obligations of the Guarantor are
paid in full or payment thereof provided for, then and in such event payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the Guarantor for
application to the payment of all Senior Obligations remaining unpaid, to the
extent necessary to pay all Senior Obligations of the Guarantor in full,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Obligations of the Guarantor.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor
as reorganized or readjusted, or securities of the Guarantor as reorganized
or readjusted, or securities of the Guarantor or any other corporation
provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Obligations of the Guarantor
which may at the time be outstanding to substantially the same extent as, or
to a greater extent than, the Guarantor Obligations are so subordinated as
provided in this Article. The consolidation of the Guarantor with, or the
merger of the Guarantor into, another Person or the liquidation or
dissolution of the Guarantor following the conveyance or transfer of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions, if any, set forth in any Officer's Certificate or
supplemental indenture creating any series of Securities shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the
Guarantor for the purposes of this Section if the surviving Person, as part
of such consolidation, merger, conveyance or transfer, complies with the
conditions, if any, set forth in the Officer's Certificate or supplemental
indenture.
92
Section 1405. No Payment When Senior Obligations in Default.
---------------------------------------------
If (a) in the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Obligations of the Guarantor beyond any applicable grace period with respect
thereto (a "payment event of default"), or in the event that any event of
default (other than a payment event of default) with respect to any Senior
Obligations of the Guarantor shall have occurred and be continuing and shall
have resulted in such Senior Obligations of the Guarantor becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, or (b) in the event that any event of default (other
than a payment event of default) with respect to any Senior Obligations of
the Guarantor shall have occurred and be continuing permitting the holders of
such Senior Obligations of the Guarantor (or a trustee on behalf of the
holders thereof) to declare such Senior Obligations of the Guarantor due and
payable prior to the date on which it would otherwise have become due and
payable, then no payment, direct or indirect (including any payment which may
be payable by reason of the payment of any other indebtedness of the
Guarantor being subordinated to the payment of the Securities), shall be made
by the Guarantor on account of principal of (or premium, if any) or interest
on the Securities or on account of the purchase or redemption or other
acquisition of Securities or coupons appertaining thereto (x) in case of any
payment or nonpayment event of default specified in (a), unless and until (A)
such event of default shall have been cured or waived or shall have ceased to
exist or such acceleration shall have been rescinded or annulled or (B) the
Senior Obligations of the Guarantor in respect of which such declaration of
acceleration has occurred is discharged, (y) in case of any nonpayment event
of default specified in (b), from the earlier of the dates the Guarantor and
the Trustee receive written notice of such event of default from a
representative of a holder of Senior Obligations of the Guarantor until the
earlier of (A) 180 days after such date and (B) the date, if any, on which
the Senior Obligations of the Guarantor to which such default relates are
discharged or such default is waived by the holders of such Senior
Obligations of the Guarantor or otherwise cured (provided that further
written notice relating to the same or any other nonpayment event of default
specified in (b) above with respect to the same Senior Obligations of the
Guarantor received by the Guarantor or the Trustee within 12 months after
such receipt shall not be effective for purposes of this clause (y)) or (z)
in case of any payment or nonpayment event of default specified in clause (a)
or (b), as long as any judicial proceeding is pending with respect to such
event.
In the event that, notwithstanding the foregoing, the Guarantor
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such
event such payment shall be held for the benefit of and, upon receipt by the
Trustee of the notice set forth in Section 1412, shall be paid over and
delivered forthwith to Guarantor, in each case for the benefit of the holders
of Senior Obligations of the Guarantor, and to the extent of any such payment
over the rights and remedies of the Trustee and the Holders of Securities and
coupons, and the obligations of the Company and the Guarantor, shall be
reinstated in full force and effect as if such payment by the Guarantor to
the Trustee or such Holders had never been made.
93
The provisions of this Section shall not apply to any payment with
respect to which Section 1404 (without giving effect to the exclusion from
the applicability of said Section contained in the first sentence of the last
paragraph thereof) would be applicable.
Section 1406. Notices by Guarantor.
--------------------
The Guarantor shall, or the Company on the Guarantor's behalf
shall, promptly notify the Trustee in writing of any facts known to the
Company or the Guarantor, as the case may be, that would cause any payment or
distribution made by the Guarantor to violate this Article Fourteen, but
failure to give such notice shall not affect the subordination contained
herein to any Senior Obligations of the Guarantor provided in this Article
Fourteen.
Section 1407. Subrogation of Securityholders and Guarantor.
--------------------------------------------
Subject to the payment in full of all Senior Obligations of the
Guarantor, the Holders of the Securities and the coupons, if any,
appertaining thereto shall be subrogated (equally and ratably with the holders
of all indebtedness of the Guarantor which by its terms is subordinated to
Senior Obligations of the Guarantor to the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights
of holders of such Senior Obligations of the Guarantor to receive payments
and distributions of cash, property and securities applicable to such Senior
Obligations of the Guarantor until the principal of (and premium, if any, on)
and interest on the Securities and coupons, if any, appertaining thereto shall
be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Obligations of the Guarantor of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the subordination provisions of this
Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Obligations of the Guarantor by
Holders of the Securities and coupons or the Trustee, shall, as among the
Guarantor, its creditors other than holders of Senior Obligations of the
Guarantor and the Holders of such Senior Obligations, be deemed to be a
payment or distribution by the Guarantor to or on account of the Senior
Obligations of the Guarantor.
Until the Securities and coupons, if any, appertaining thereto are
indefeasibly paid in full, the Guarantor shall not exercise any rights that
it may acquire by way of subrogation under this Article Fourteen, by any
payment made hereunder or otherwise, including the right to ask, demand, sue
for, take or receive from the Company such subrogation rights. If any amount
shall be paid to the Guarantor on account of such subrogation rights in
violation of the preceding sentence, such amount shall be held in trust for
the benefit of the Trustee and the Holders of Securities and coupons, if any,
appertaining thereto and shall forthwith be paid to the Trustee to be
credited and applied in accordance with the terms hereof.
Section 1408. Relative Rights Under Subordinated Guarantees.
---------------------------------------------
The subordination provisions of this Article Fourteen are intended
solely for the purpose of defining the relative rights of the Trustee, the
Holders of Securities and coupons, if any, appertaining thereto and holders
of Senior Obligations with respect to the Guarantor. Nothing in this Article
Fourteen shall:
94
(i) impair, as between the Guarantor, its creditors other than
holders of its Senior Obligations and the Trustee and the Holders of
Securities and coupons, if any, appertaining thereto, the obligations of
the Guarantor, which are absolute and unconditional, to pay its
Guarantor Obligations as and when the same shall become due and payable
in accordance with their terms or impair, as among the Company, its
creditors and the Holders of the Securities and coupons, if any,
appertaining thereto, the obligation of the Company, which also is
absolute and unconditional, to pay to the Holders of the Securities and
coupons, if any, appertaining thereto the principal of (and premium, if
any) and interest on the Securities as and when the same shall become
due and payable in accordance with their terms;
(ii) affect the relative rights against the Guarantor of the
Trustee and the Holders of Securities and coupons, if any, appertaining
thereto and creditors of the Guarantor other than holders of Senior
Obligations of the Guarantor; or
(iii) prevent the Trustee or any Holder of a Security or any
coupon from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the express limitation
in Article Five and to the rights, if any, under this Article Fourteen
of the holders of Senior Obligations of the Guarantor.
Section 1409. Subordination May Not Be Impaired by Guarantor.
----------------------------------------------
No right of any holder of Senior Obligations of the Guarantor to
enforce the subordination of the Guarantor Obligations evidenced hereby shall
be impaired by any act or failure to act in good faith by any such holder, or
by any non-compliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Section 1410. Waivers by Guarantor.
--------------------
(a) The Guarantor hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Securities and
the coupons, if any, appertaining thereto and this Indenture and any
requirement that the Trustee protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Company or any other Person or any collateral.
(b) The Guarantor hereby waives any right to require the Trustee
or the Holders of Securities and coupons, if any, appertaining thereto to
proceed against the Company or any other Person, or proceed against or
exhaust any collateral, or pursue any other remedy in the power of the
Trustee or the Holders of Securities and coupons, if any, appertaining
thereto.
Section 1411. Covenant Compliance by Guarantor.
--------------------------------
The Guarantor hereby covenants and agrees that it shall comply with
all of its obligations, requirements and restrictions in the covenants
contained in this Indenture so as not to create an Event of Default under
this Indenture.
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Section 1412. Rights of Trustee and Paying Agent in Respect of
------------------------------------------------
Subordinated Guarantees.
-----------------------
The Trustee or Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause the
payment of principal of (and premium, if any), or interest (including
accreted interest) on the Securities to violate this Article Fourteen. Only
the Guarantor, a representative or a trustee under an indenture or other
agreement pursuant to which Senior Obligations of the Guarantor were issued,
or a holder of an issue of Senior Obligations of the Guarantor that has no
representative may give the notice. Prior to three Business Days after
receipt by a Responsible Officer of the Trustee or the Paying Agent of such
notice, the Trustee or the Paying Agent, as the case may be, shall be
entitled in all respects to assume that no such facts exist. In any case,
the Trustee shall have no responsibility to the holders of Senior Obligations
of the Guarantor for payments made to Holders of Securities and any coupons
appertaining thereto by the Guarantor or any Paying Agent unless such
payments are made at the direction of the Trustee. The provisions of this
Section 1412 shall control any conflicting provisions of this Indenture
regarding payments by the Guarantor.
To the extent provided herein, payments and distributions which are
prohibited by Sections 1404 and 1405 hereof will be held by the Trustee for
the benefit of the holders of Senior Obligations of the Guarantor. The
Trustee shall not be under any duty or obligation to take under this Article
Fourteen any action at the request or for the benefit of holders of Senior
Obligations of the Guarantor which, in the Trustee's opinion, shall be likely
to involve it in any expense or liability, if there are reasonable grounds
for believing that a repayment of such expense or liability is not reasonably
assured to it, unless one or more holders of Senior Obligations of the
Guarantor shall, as often as may be required by the Trustee, furnish
indemnity satisfactory to the Trustee against such expense or liability.
The Trustee in its individual or any other capacity may hold Senior
Obligations of the Guarantor with the same rights it would have if it were
not Trustee.
With respect to the holders of Senior Obligations of the Guarantor,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Obligations of
the Guarantor shall be read into this Indenture against the Trustee. Subject
to the first paragraph of this Section 1412, the Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Obligations of the
Guarantor if it shall pay over or deliver to Holders of Securities or
coupons, the Company or any other person moneys or assets to which any holder
of Senior Obligations of the Guarantor shall be entitled by virtue of this
Article or otherwise.
Section 1413. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution referred to in this Article, the
Trustee, subject to the provisions of TIA Section 315(a) through 315(d), the
Holders of the Securities and the coupons, if any, appertaining thereto and
the Guarantor shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which any such
96
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of the Securities and the coupons, if any, appertaining thereto, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Obligations of the Guarantor,
any other Indebtedness of the Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 1414. Rights of Trustee as a Holder of Senior Obligations
---------------------------------------------------
of the Guarantor; Preservation of Trustee's Rights.
--------------------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Obligations of
the Guarantor which may at any time be held by it, to the same extent as any
other holder of Senior Obligations of the Guarantor, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 606.
Section 1415. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1414 shall not apply to the Company,
the Guarantor or any of their Affiliates if the Company, the Guarantor or
such Affiliate acts as Paying Agent.
Section 1416. Distribution or Notice to Representative by the
-----------------------------------------------
Company and Guarantor.
---------------------
Whenever a distribution is to be made by the Company or the
Guarantor or a notice given to holders of Senior Obligations of the Guarantor
by the Company or the Guarantor, the distribution may be made and the notice
given to the representatives of the holders of such Senior Obligations.
Section 1417. Reliance by Holders of Senior Obligations of the
------------------------------------------------
Guarantor on Subordination Provisions.
-------------------------------------
Each Holder of a Security or coupon by accepting such Security or
coupon acknowledges and agrees that the subordination provisions of this
Article Fourteen are, and are intended to be, an inducement and a
consideration to each holder of any Senior Obligations of the Guarantor,
whether such Senior Obligations of the Guarantor were created or acquired
before or after the issuance of the Securities, to acquire and continue to
hold, or to continue to hold, such Senior Obligations of the Guarantor and
such holder of Senior
97
Obligations of the Guarantor shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Obligations of the Guarantor. The provisions
of Article Fourteen are intended to be for the benefit of, and shall be
enforceable directly by, the holders of Senior Obligations of the Guarantor.
Section 1418. Payment in Full.
---------------
For purposes of this Indenture, payment in full by the Guarantor of
any guarantee of obligations of the Company under any Credit Agreement shall
mean payment in full of such Senior Obligations of the Guarantor in cash or
cash equivalents, termination or replacement of all letters of credit issued
thereunder and termination of all commitments thereunder.
Section 1419. No Suspension of Remedies.
-------------------------
Except as set forth in Article Five, nothing contained in this
Article Fourteen shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law.
Section 1420. Article Fourteen Not to Prevent Events of Default.
-------------------------------------------------
The failure to make payment pursuant to the Guarantees by reason of
any provision in this Article Fourteen shall not be construed as preventing
the occurrence of a Default or an Event of Default.
Section 1421. Inapplicability of Subordination Provisions to
----------------------------------------------
Certain Trust Monies and Certain Payments.
-----------------------------------------
The subordination of the Guarantor Obligations of the Guarantor
provided by this Article Fourteen is expressly made subject to the provisions
for defeasance or covenant defeasance in Article Seventeen and, anything
herein to the contrary notwithstanding, with respect to any Guarantor, the
subordination provisions of this Article Fourteen (including without
limitation Sections 1403, 1404 and 1405) shall not apply to money, U.S.
Government Obligations or proceeds thereof held in trust by the Trustee
pursuant to Article Four or Article Seventeen. Anything herein to the
contrary notwithstanding, with respect to the Guarantor, the subordination
provisions of this Article Fourteen (including without limitation Sections
1403, 1404 and 1405) shall not apply to any payment on (including, without
limitation, any deposit with respect to the payment of) the Securities or
any coupons by the Company.
Section 1422. 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
98
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 FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity
at the option of the Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified by the terms of
such series established pursuant to Section 301) in accordance with this
Article.
Section 1502. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part
at the option of the Holders hereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price (the "Repayment Price") equal
to the principal amount thereof, together with interest, if any, thereon
accrued to the repayment date specified in or pursuant to the terms of such
Securities (the "Repayment Date"). The Company covenants that on or before
the Repayment Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company or the Guarantor is acting as Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if
the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid on
such date.
Section 1503. 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.
99
If less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must
be specified. The principal amount of any Security providing for repayment
at the option of the Holder thereof may not be repaid in part if, following
such repayment, the unpaid principal amount of such Security would be less
than the minimum authorized denomination of Securities of the series of which
such Security to be repaid is a part. Except as otherwise may be provided by
the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
Section 1504. When Securities Presented for Repayment Become Due
--------------------------------------------------
and Payable.
-----------
If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
and, if applicable, the Guarantor shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if
any, appertaining thereto maturing after the Repayment Date, the principal
amount of such Security so to be repaid shall be paid by the Company,
together with accrued interest, if any, to the Repayment Date; provided,
however, that coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of such coupons, and provided further that, unless otherwise
specified as contemplated by Section 301, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1502 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
100
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002),
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
Section 1505. 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 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 Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 33 1/3% in aggregate principal amount
of the Outstanding Securities of
101
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 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 holding or representing such specified percentage in
principal amount of the Outstanding Securities of such series will 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, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 1602(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to the first paragraph of Section
902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in
102
principal amount of the Outstanding Securities of that series, provided,
however, that, except as limited by the proviso to the first paragraph of
Section 902, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which this Indenture
expressly provides may be given or taken by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities, 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.
Section 1605. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
-----------------------
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1602(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting of the Holders of Securities of any series each
Holder of a Security of such series or proxy shall be entitled to one vote
for each $1,000 principal amount of the Outstanding Securities of such series
held or represented by him (determined as specified in the definition of
"Outstanding" in Section 101); provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman
103
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 facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1602 and, if applicable, Section 1604. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1701. Applicability of Article; 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 1702 or (b)
covenant defeasance of the Securities of a series under Section 1703, then
the provisions of such Section 1702 or Section 1703, as the case may be,
together with Sections 1704, 1705 and 1706 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 1702 (if applicable) or Section 1703 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Seventeen.
104
Section 1702. 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 1705 and 1706, the Company and the Guarantor shall be deemed to have
been discharged from their respective obligations with respect to the
Outstanding Securities of such series and any related coupons on and after
the date the conditions precedent set forth below are satisfied but subject
to satisfaction of the conditions subsequent set forth below (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company and
the Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and any
related coupons, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1705 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 and any related coupons to receive, solely from
the trust fund described in Section 1704 and as more fully set forth in
such Section, payments 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 and immunities and other provisions in respect of the Trustee
hereunder and (D) this Article Seventeen. Subject to compliance with this
Article Seventeen, the Company may exercise its option under this Section 1702
notwithstanding the prior exercise of its option under Section 1703 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 1703. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company and
the Guarantor shall each be released from their respective obligations under
any Section(s) of this Indenture applicable to 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 and any related coupons, the Company and the Guarantor
may omit to comply with and shall have no
105
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 any 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 may not be
accelerated because of an Event of Default solely by reference to such
Sections specified above in this Section 1703.
Section 1704. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent or, as specifically
noted below, subsequent to application of either Section 1702 or Section 1703
to the 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 Seventeen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for the benefit of, and dedicated solely to, the
Holders of such Securities and any related coupons, (A) Dollars in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, Dollars in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (or other qualifying trustee), to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) each installment of the
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 Event of Default, or event which after notice or lapse of
time, or both, would become an Event of Default with respect to the
Securities of such series, shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 501(6) and (7)
hereof 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
106
respect of such deposit (it being understood that the condition in this
clause (B) is a condition subsequent and shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest
as defined in TIA Section 310(b) or otherwise for purposes of the Trust
Indenture Act with respect to any securities of the Company or
(B) result in the trust arising from such deposit to constitute, unless
it is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other 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 then listed on any registered national securities exchange
under the Exchange Act to be delisted.
(6) In the case of an election under Section 1702, 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 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 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 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 1703, 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 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 on the Company 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 1702 or the covenant defeasance
under Section 1703 (as the case may be) have been complied with.
107
Section 1705. Deposited Money and U.S. Government Obligations to
--------------------------------------------------
Be Held in Trust; Other Miscellaneous Provisions.
------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively for purposes of
this Section 1705, the "Trustee") pursuant to Section 1704 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.
Without limiting the generality of the preceding sentence, such money, U.S.
Government Obligations and proceeds shall not be subject to the provisions of
Article Thirteen or the subordination provisions of Article Fourteen
(including, without limitation, Sections 1403, 1404 and 1405).
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or U.S.
Governmental Obligations deposited pursuant to Section 1704 or the principal
and interest received in respect thereof.
Anything in this Article Seventeen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1704 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 1706. Reinstatement.
-------------
Anything herein to the contrary notwithstanding, if and to the
extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (i) cannot be applied by the Trustee or any Paying Agent in
accordance with Section 1705 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 1703, 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
108
U.S. Government Obligations (and proceeds thereof) shall be reinstated to the
extent the Company's payment obligations are reinstated.
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.
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.
By
-------------------------------
Title:
Attest:
----------------------
Title:
VIACOM INTERNATIONAL INC.
By
-------------------------------
Title:
Attest:
----------------------
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
-------------------------------
Title:
Attest:
----------------------
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 persons(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v), are herein referred to as
"financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise Viacom
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
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
A-1-2
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such
date.
This certificate excepts and does not relate to U.S.$__________ of
such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
[To be dated no earlier than
the 15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
-----------------------------
(Authorized Signatory)
--------------------
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof,
[U.S.$]__________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in
either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may
advise Viacom Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) have
certified that they have not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to
a person within the United States or its possessions.
As used herein, "United States" means the United States
of America (including the states and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
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
A-2-2
Member Organizations with respect to any portion of the part
submitted herewith for exchange (or, if relevant, collection of
any interest) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the
Exchange Date, as applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator
of the Euroclear System]
[CEDEL S.A.]
By
---------------------------
EXHIBIT 5
(212) 848-7325
April 13, 1995
Viacom Inc.
1515 Broadway
New York, New York 10036
Viacom International Inc.
1515 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as counsel for Viacom Inc., a Delaware
corporation ("Viacom"), and Viacom International Inc., a Delaware
corporation ("Viacom International"), in connection with the
preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-3 (Reg.
No. 33-53485) (as the same may be amended or supplemented from
time to time, the "Registration Statement") with respect to the
following securities (collectively, the "Securities"): (i) senior
debt securities Viacom ("Senior Debt Securities"), (ii) senior
subordinated debt securities of Viacom ("Senior Subordinated Debt
Securities" and, together with the Senior Debt Securities, the
"Debt Securities"), (iii) guarantees of Viacom International
of the Debt Securities (the "Guarantees"), and (iv) shares of
Viacom's preferred stock ("Preferred Stock"), to be issued from
time to time in one or more series, on terms to be determined at
the time of offering. The aggregate gross proceeds from the
offer and sale of the Securities under the Registration Statement
will not exceed $3.0 billion.
36128/NYL3
Viacom Inc. 2 April 13, 1995
Viacom International Inc.
The Debt Securities are to be issued from time to time
as either senior indebtedness of Viacom under an indenture among
Viacom, as issuer, Viacom International, as guarantor, and The
First National Bank of Boston, as trustee, in substantially the
form included in the Registration Statement as Exhibit 4.1, or
senior subordinated indebtedness of Viacom under an indenture
among Viacom, as issuer, Viacom International, as guarantor, and
The First National Bank of Boston, as trustee, in substantially
the form included in the Registration Statement as Exhibit 4.2
(collectively, the "Indentures").
In so acting, we have examined the Registration
Statement and the Indentures. We have also examined and relied
as to factual matters upon the representations and warranties
contained in originals, or copies certified or otherwise
identified to our satisfaction, of such records, documents,
certificates and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinions
expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents,
certificates and instruments submitted to us as originals and the
conformity with originals of all documents submitted to us as
copies.
Our opinions expressed below are limited to the law of
the State of New York, the General Corporation Law of Delaware
and the federal law of the United States, and we do not express
any opinion herein concerning any other law.
Based upon the foregoing, and having regard for such
legal considerations as we have deemed relevant, we are of the
opinion that:
1. the Indentures have been duly authorized by each
of Viacom and Viacom International;
2. when the Indentures have been duly executed and
delivered by the parties thereto, the Debt Securities with
the Guarantees endorsed thereon have been duly executed and
issued in accordance with the provisions of the applicable
Indenture (including the provisions of the Indenture
regarding establishment of the form of the Debt Securities),
and the Debt Securities have been authenticated by the
trustee under the applicable Indenture and duly paid for by
the purchasers thereof in the manner and on the terms
described in the Registration Statement (after it is
declared effective), the Debt Securities and the Guarantees
will have been validly issued and will constitute the valid
and binding obligations of Viacom and Viacom International,
Viacom Inc. 3 April 13, 1995
Viacom International Inc.
respectively, enforceable against Viacom and Viacom
International in accordance with their respective terms
subject to (i) the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii)
the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
3. when the terms of the Preferred Stock have been
duly authorized, established and approved by Viacom,
certificates representing the shares of Preferred Stock have
been duly executed by Viacom and delivered to and paid for
by the purchasers thereof in the manner and on the terms
described in the Registration Statement (after it is
declared effective) and all other corporate action necessary
for issuance of such shares of Preferred Stock has been
taken, including the adoption of a Certificate of
Designations, such shares of Preferred Stock will be duly
and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to us
under the heading "Legal Matters" contained in the prospectus
included therein.
Very truly yours,
/s/ Shearman & Sterling
Exhibit 12
VIACOM INC. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(In millions)
Year Ended December 31,
----------------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
Earnings (loss) before income taxes $376.7 $301.8 $155.6 $8.2 ($70.4)
Add:
Share of income of fifty-percent-owned affiliates and
distributed income of affiliated companies 30.1 13.4 9.5 5.6 2.8
Interest expense, net of capitalized interest 526.7 154.1 195.2 298.1 295.3
Capitalized interest amortized 6.9 2.1 2.4 2.4 2.3
1/3 of rental expense 83.9 24.8 22.6 21.5 18.8
--------- ---------- --------- --------- ---------
Earnings $1,024.3 $496.2 $385.3 $335.8 $248.8
========= ========== ========= ========= =========
Fixed charges:
Interest costs on all indebtedness $536.3 $154.5 $195.7 $298.6 $296.1
1/3 of rental expense 83.9 24.8 22.6 21.5 18.8
--------- ---------- --------- --------- ---------
Total fixed charges $620.2 $179.3 $218.3 $320.1 $314.9
Preferred Stock dividend requirements 288.5 22.4 -- -- --
--------- ---------- --------- --------- ---------
Total fixed charges and Preferred Stock dividend
requirements $908.7 $201.7 $218.3 $320.1 $314.9
========= ========== ========= ========= =========
Ratio of earnings to fixed charges 1.7x 2.8x 1.8x 1.0x Note a
========= ========== ========= ========= =========
Ratio of earnings to combined fixed charges and
Preferred Stock dividends 1.1x 2.5x -- -- --
========= ========== ========= ========= =========
(a) Earnings were inadequate to cover fixed charges, the additional amount of Earnings required to cover
fixed charges for the year ended December 31, 1990 would have been $66.1 million.
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
consituting part of this Registration Statement on Form S-3 of Viacom Inc. and
Viacom Interntional Inc. of our reports dated June 3, 1994, appearing on page
F-2 and page 4 of Item 14 (a) in the Paramount Communications Inc. Transition
Report on Form 10-K for the eleven month period ended March 31, 1994, as amended
by Form 10-K/A Amendment No. 1 dated July 29, 1994 and as further amended by
Form 10-K/A Amendment No. 2 dated August 12, 1994. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
New York, New York
April 12, 1995
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Viacom Inc.
and Viacom International Inc. of our reports dated February 4, 1994, except as
to Note2., which is as of March 11, 1994, appearing on pages II-32 and F-2 of
the Viacom International Inc. Annual Report on Form 10-K for the year ended
December 31, 1993, as ammended by Form 10-K/A Amendment No. 1 dated May 2,
1994. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
New York, New York
April 12, 1995
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 33-53485) and related Prospectus of
Viacom Inc. and Viacom International Inc. for the registration of
$3,000,000,000 of senior debt securities, senior subordinated debt securities
and preferred stock and to the incorporation by reference therein of our
report dated August 27, 1993, except for Notes A and J, as to which the date
is September 10, 1993, with respect to the consolidated financial statements
of Paramount Communications Inc. included in the Viacom Inc. Current Report
(Form 8-K) filed with the Securities and Exchange Commission on April 14,
1995.
ERNST & YOUNG LLP
New York, New York
April 13, 1995
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated March 23, 1994, on Blockbuster Entertainment Corporation's 1993,
1992 and 1991 financial statements, included in Viacom Inc.'s Form 8-K
dated April 13, 1995, and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Fort Lauderdale, Florida,
April 10, 1995.
Exhibit 23.4
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Viacom Inc.
and Viacom International Inc. of our reports dated February 10, 1995, appearing
on pages II-15 and F-2 of the Viacom Inc. Annual Report on Form 10-K for the
year ended December 31, 1994. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
New York, New York
April 12, 1995
Exhibit 24
VIACOM INC.
VIACOM INTERNATIONAL INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director and/or
officer of VIACOM INC. and VIACOM INTERNATIONAL INC. ("Viacom
International") (individually, and collectively, the "Company"), hereby
constitutes and appoints Philippe P. Dauman, Michael D. Fricklas and Nancy P.
Rosenfeld, and each of them, her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for her and in her name,
place and stead, in any and all capacities, to sign (1) a registration
statement 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
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
statement or amendments thereto or supplements or amendments to such
Prospectus, covering the offering and issuance of up to $3 billion aggregate
gross proceeds of (i) debt securities of Viacom Inc., including any related
guarantees of Viacom International and (ii) preferred stock 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 pan 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 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 12th day of
April, 1995.
/s/ Susan C. Gordon
----------------------
Susan C. Gordon
EXHIBIT 25
SECURITIES ACT OF 1933 FILE NO: 33-53485
{IF APPLICATION TO DETERMINE ELIGIBILITY
OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2)}
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
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 FIRST NATIONAL BANK OF BOSTON
(Exact name of Trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Spiess, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for service)
_________________________
VIACOM INC. VIACOM INTERNATIONAL INC.
(Exact name of obligor as (Exact name of obligor as
specified in its charter) specified in its charter)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
1515 Broadway 1515 Broadway
New York, NY 10036 New York, NY 10036
(Address of principal executive (Address of principal executive
offices) offices)
04-2949533 04-2980402
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
SENIOR AND SENIOR SUBORDINATED DEBT SECURITIES OF VIACOM INC.
GUARANTEES OF VIACOM INTERNATIONAL INC.
(Title of 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.
Comptroller of the Currency of the United States, Washington D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility
and qualification.
1. A copy of the articles of association of the trustee as now in
effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of the certificate of T. McLean Griffin, Cashier of the trustee,
dated February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a national banking association, as well as a certificate as to such merger is
filed as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6,
1978 is filed as Exhibit No. 3 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated December 23,
1993 is filed as Exhibit No. 4 to statement of eligibility and qualifications
No. 22-25754 and is incorporated herein by reference thereto.
5. Not applicable
6. The consent of the trustee required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 6 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and Qualification which
relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if necessary,
to reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and
Commonwealth of Massachusetts, on the 7th day of April, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By Henry W. Seemore
Henry W. Seemore
Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, in connection with the proposed issue of Senior and Senior Subordinated
Debt Securities of Viacom Inc. we hereby consent that reports of examinations
by Federal, State, Territorial, or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By Henry W. Seemore
Henry W. Seemore
Account Manager
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December 31, 1994. Published in response to call
made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter number 200. Comptroller
of the Currency Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
---------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ..................................... $ 1,862,093
Interest-bearing balances ................................................................ 1,551,280
Securities .................................................................................... 3,935,691
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold ......................................................................... 758,937
Securities purchased under agreements to resell .................................................. 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ................... $25,796,462
LESS: Allowance for loan and lease losses ...................... 534,630
LESS: Allocated transfer risk reserve ................................ 0
Loans and leases, net of unearned income, allowance and reserve ......................... 25,261,832
Assets held in trading accounts ................................................................. 840,348
Premises and fixed assets (including capitalized leases) ........................................ 398,475
Other real estate owned ......................................................................... 48,504
Investments in unconsolidated subsidiaries and associated companies ............................. 103,670
Customers' liability to this bank on acceptances outstanding .................................... 304,031
Intangible assets ............................................................................... 651,394
Other assets .................................................................................. 1,170,251
---------
Total Assets .......................................................................... $36,886,506
===========
LIABILITIES
Deposits:
In domestic offices .................................................................... $14,924,310
Noninterest-bearing ........................................ $ 4,035,673
Interest-bearing .............................................10,888,637
In foreign offices, Edge and Agreement subsidiaries, and IBF's................................. 9,998,764
Noninterest-bearing .............................................570,582
Interest-bearing ..............................................9,428,182
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased .................................................................. 2,464,904
Securities sold under agreements to repurchase ............................................. 277,077
Demand notes issued to the U.S. Treasury ........................................................ 364,045
Trading Liabilities ............................................................................. 227,865
Other borrowed money .......................................................................... 3,875,462
Mortgage indebtedness and obligations under capitalized leases ................................... 14,007
Bank's liability on acceptances executed and outstanding ........................................ 305,512
Subordinated notes and debentures ............................................................... 979,167
Other liabilities ............................................................................. 1,022,105
Total Liabilities ...................................................................... $34,453,218
===========
Limited-life preferred stock and equity capital 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................................................... $ 0
Common stock ..................................................................................... 82,264
Surplus ......................................................................................... 987,524
Undivided profits and capital reserves ........................................................ 1,408,062
LESS: Net unrealized loss on marketable equity securities ....................................... (39,027)
Cumulative foreign currency translation adjustments ............................................. (5,535)
Total equity capital .......................................................................... 2,433,288
---------
Total Liabilities, Limited-life preferred stock, and equity ........................... $36,866,506
===========
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. 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.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
