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).
4.6 - Form of Indenture relating to the Subordinated Debt Securities.
4.7 - Form of Contingent Value Rights Agreement between Viacom Inc.
and Harris Trust and Savings Bank, Trustee.
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.**
25.1 - Form T-1 Statement of Eligibility of The First National Bank of
Boston, Trustee.
25.2 - Form T-1 Statement of Eligibility of Harris Trust and Savings
Bank, CVR Trustee.
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* Previously filed.
** All of the Powers of Attorney were previously filed except the Power of
Attorney of Steven R. Berrard, George D. Johnson, Jr. and Shari
Redstone.
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").
----------------------
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Capitalized terms used
--------------
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
---------------------
relating to the Offered Securities pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term Registration
-------------- ------------
Statement means the registration statement as amended to the date of this
---------
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) [1] 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")][(the
--------- ----------------------------------
"Subordinated Debt Indenture")], has been duly qualified under the
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Trust Indenture Act of 1939, as amended (the "TIA"), 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
-------------------
Company has been informed by the Commission that the Commission has
declared the Trustee Application effective].]
[(d)[2] The Contingent Value Rights Agreement dated ________
between the Company and Harris Trust and Savings Bank, CVR
trustee (the "CVR Trustee"), relating to the CVRs (the "CVR
----------- ---
Agreement"), has been duly qualified under the Trust Indenture
---------
Act of 1939, as amended (the "TIA"), has been duly authorized,
---
executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the CVR Trustee, is a
valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency (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 CVR Trustee under the CVR Agreement 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 "CVR Trustee Application") [,
-----------------------
and the Company has been informed by the Commission that the
Commission has declared the CVR Trustee Application effective].]
[(e)[1] The [Debt Securities] [CVRs] 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] [CVR Agreement] and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, the [Debt Securities] [and the Guarantees] [CVRs] will be
entitled to the benefits of the [[relevant] Indenture] [CVR Agreement],
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
Subordinated Debt Indenture], [the CVR Agreement] [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
4
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
---------------------
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
---------------------
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.
5
(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) [1] The Trustee Application shall have become effective.]
[(d) [2] The CVR Trustee Application shall have become effective.]
5. Covenants of the Company and the Guarantor. In further
------------------------------------------
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 incorporated 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
6
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
--------------------------------
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
-------
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)
9
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
-----------
in the Manager's absolute discretion, by notice given to the Company, if (a)
after the execution and
10
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
-----------------------
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
--------
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
11
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
-------------
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
--------
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
UNDERWRITING AGREEMENT
, 199
------------- -- -
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")]/[Number of CVRs] (the "CVRs")]. The Debt Securities,
--------------- ----
the CVRs 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] [number] 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 Shares
Name of/Number 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/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]
Terms of CRVs:
Title:
Maturity Date:
Target Price:
Valuation Period:
Method of Determining Current Market Value:
[Other Terms:]
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] [Subordinated] Debt Indenture,
the Debt Securities [and the CVR Agreement] 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]
[Subordinated] Debt Indenture, the Debt Securities [and the CVR
Agreement], 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 and the CVR Agreement have been duly
qualified under the Trust Indenture Act and such Indenture and the
CVR Agreement have been duly authorized, executed and delivered by
Viacom and the Guarantor and (assuming due authorization, execution
and delivery thereof by the Trustee or the CVR 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] [and the CVRs] have been duly authorized and executed by
Viacom [and the Guarantor, respectively], and, when the Debt
Securities [and guarantees] [and the CVRs] have been authenticated
in accordance with the provisions of the Indenture [the CVR
Agreement] 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] [and the CVRs]
will have been duly issued and will be entitled to the benefits
of the Indenture [the CVR Agreement] 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 Statements of Eligibility
on Form T-1 of the Trustee and the CVR 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 Statements of Eligibility on Form T-1 of the Trustee and
the CVR 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 4.6
==================================================================
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
__________________________
Indenture
Dated as of __________, 1995
_________________________
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 and Senior Subordinated Obligations. 12
Senior Debt Indenture . . . . . . . . . . . 12
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iii
PAGE
----
Senior Debt Securities . . . . . . . . . . . . . . 12
Senior Obligations . . . . . . . . . . . . . . . . 12
Senior Subordinated Debt Indenture . . . . . . . . 13
Senior Subordinated Debt Securities . . . . . . . . 13
Senior Subordinated Guarantees . . . . . . . . . . 13
Special Record Date . . . . . . . . . . . . . . . . 13
Specified Currency . . . . . . . . . . . . . . . . 13
Stated Maturity . . . . . . . . . . . . . . . . . . 13
Subsidiary . . . . . . . . . . . . . . . . . . . . 13
Trust Indenture Act or TIA . . . . . . . . . . . . 13
Trustee . . . . . . . . . . . . . . . . . . . . . . 13
United States . . . . . . . . . . . . . . . . . . . 13
United States Person . . . . . . . . . . . . . . . 14
U.S. Depositary . . . . . . . . . . . . . . . . . . 14
U.S. Government Obligations . . . . . . . . . . . . 14
Vice President . . . . . . . . . . . . . . . . . . 14
Voting Stock . . . . . . . . . . . . . . . . . . . 14
Yield to Maturity . . . . . . . . . . . . . . . . . 14
Section 102. Compliance Certificates and Opinions . . . . . . . 15
Section 103. Form of Documents Delivered to Trustee . . . . . . 15
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . 16
Section 105. Notices, Etc., to Trustee, Company or Guarantor . . 18
Section 106. Notice to Holders of Securities; Waiver . . . . . . 18
Section 107. Language of Notices, Etc. . . . . . . . . . . . . . 20
Section 108. Trust Indenture Act . . . . . . . . . . . . . . . . 20
Section 109. Effect of Headings and Table of Contents . . . . . 20
Section 110. Successors and Assigns . . . . . . . . . . . . . . 20
Section 111. Separability Clause . . . . . . . . . . . . . . . 20
Section 112. Benefits of Indenture . . . . . . . . . . . . . . . 20
Section 113. Governing Law . . . . . . . . . . . . . . . . . . 21
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . 21
Section 115. Securities not "Senior Guarantor Obligations" . . . 21
Section 116. Submission to Jurisdiction; Appointment of
Agent for Service . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . 22
Section 202. Form of Trustee's Certificate of Authentication . . 23
Section 203. Securities in Global Form . . . . . . . . . . . . . 24
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 . . . . . . . . . 25
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . 29
Section 303. Execution, Authentication, Delivery and Dating . . . . 29
Section 304. Temporary Securities . . . . . . . . . . . . . . . . 33
Section 305. Registration, Registration of Transfer and Exchange . 36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons . . . . . . . . . . . . . . . . . . . . . 39
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset .. . . . . . . . . . . . . . . 40
Section 308. Optional Extension of Stated Maturity .. . . . . . . . 43
Section 309. Persons Deemed Owners . . . . . . . . . . . . . . . . 44
Section 310. Cancellation . . . . . . . . . . . . . . . . . . . . . 45
Section 311. Computation of Interest . . . . . . . . . . . . . . . 46
Section 312. Judgments . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . . . . . 47
Section 402. Application of Trust Money . . . . . . . . . . . . . . 48
ARTICLE FIVE
REMEDIES
Section 501. Events of Default .. . . . . . . . . . . . . . . . . . 49
Section 502. Acceleration of Maturity; Rescission and Annulment . . 51
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 53
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . 54
Section 505. Trustee May Enforce Claims Without Possession of
Securities .. . . . . . . . . . . . . . . . . . . . . 55
Section 506. Application of Money Collected . . . . . . . . . . . . 55
Section 507. Limitation on Suits .. . . . . . . . . . . . . . . . . 55
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 56
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
v
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Section 509. Restoration of Rights and Remedies . . . . .. . . . . . 56
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . 57
Section 511. Delay or Omission Not Waiver .. . . . . . . . . . . . . 57
Section 512. Control by Holders .. . . . . . . . . . . . . . . . . . 57
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 58
Section 514. Waiver of Stay or Extension Laws . . . . . . . . . . . 58
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults . . . . . . . . . . . . . . . . . . 58
Section 602. Certain Rights of Trustee . . . . . . . . . . . . . . . 59
Section 603. Not Responsible for Recitals or Issuance of Securities. 60
Section 604. May Hold Securities .. . . . . . . . . . . . . . . . . 60
Section 605. Money Held in Trust . . . . . . . . . . . . . . . . . . 61
Section 606. Compensation, Reimbursement and Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 607. Corporate Trustee Required; Eligibility . . . . . . . . 62
Section 608. Resignation and Removal; Appointment of Successor . . . 62
Section 609. Acceptance of Appointment by Successor . . . . . . . . 64
Section 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 65
Section 611. Appointment of Authenticating Agent . . . . . . . . . . 66
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Disclosure of Names and Addresses of Holders . . . . . 68
Section 702. Reports by Trustee . . . . . . . . . . . . . . . . . . 68
Section 703. Reports by Company and the Guarantor . . . . . . . . . 68
ARTICLE EIGHT
[Intentionally Omitted]
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vi
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders . . 69
Section 902. Supplemental Indentures with Consent of Holders . . . 70
Section 903. Execution of Supplemental Indentures . . . . . . . . . 72
Section 904. Effect of Supplemental Indentures . . . . . . . . . . 72
Section 905. Conformity with Trust Indenture Act. . . . . . . . . . 72
Section 906. Reference in Securities to Supplemental Indentures . . 72
Section 907. Notice of Supplemental Indenture; Effect on Senior
and Senior Subordinated Obligations. . . . . . . . . . 73
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, If Any, and Interest . 73
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . 73
Section 1003. Money for Security Payments to Be Held in Trust . . . 75
Section 1004. Corporate Existence . . . . . . . . . . . . . . . . . 77
Section 1005. Maintenance of Principal Properties . . . . . . . . . 77
Section 1006. Payment of Taxes and Other Claims . . . . . . . . . . 78
Section 1007. Additional Amounts . . . . . . . . . . . . . . . . . . 78
Section 1008. Compliance Certificate . . . . . . . . . . . . . . . . 79
Section 1009. Waiver of Certain Covenants . . . . . . . . . . . . . 80
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . . . . . . 80
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . 80
Section 1103. Selection by Trustee of Securities to Be Redeemed. . . 81
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 81
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . 82
Section 1106. Securities Payable on Redemption Date . . . . . . . . 83
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . 84
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vii
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----
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . . . . . . . . 84
Section 1202. Satisfaction of Sinking Fund Payments with Securities 85
Section 1203. Redemption of Securities for Sinking Fund. . . . . . . 85
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior and
Senior Subordinated Obligations . . . . . . . . . . . 86
Section 1302. Payment Over of Proceeds upon Dissolution, Etc . . . . 86
Section 1303. No Payment When Senior and Senior Subordinated
Obligations in Default . . . . . . . . . . . . . . . 87
Section 1304. Payment Permitted If No Default . . . . . . . . . . . 89
Section 1305. Subrogation to Rights of Holders of Senior
and Senior Subordinated Obligations. . . . . . . . . . 89
Section 1306. Provisions Solely to Define Relative Rights . . . . . 90
Section 1307. Trustee to Effectuate Subordination . . . . . . . . . 90
Section 1308. No Waiver of Subordination Provisions . . . . . . . . 90
Section 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . 91
Section 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 92
Section 1311. Rights of Trustee as a Holder of Senior and Senior
Subordinated Obligations; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1312. Article Applicable to Paying Agents . . . . . . . . . 93
Section 1313. Trustee Not Fiduciary for Holders of Senior
and Senior Subordinated Obligations . . . . . . . . . 93
Section 1314. No Suspension of Remedies . . . . . . . . . . . . . . 93
Section 1315. Article Thirteen Not to Prevent Events of Default. . . 93
Section 1316. Notices to Agent Bank . . . . . . . . . . . . . . . . 94
Section 1317. Inapplicability of this Article Thirteen to Certain
Trustee Monies and Certain Payments . . . . . . . . . 94
ARTICLE FOURTEEN
SUBORDINATED GUARANTEES
Section 1401. Subordinated Guarantees . . . . . . . . . . . . . . . 95
Section 1402. Execution and Delivery of Guarantees . . . . . . . . . 96
Section 1403. Agreement to Subordinate Guarantees . . . . . . . . . 97
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
viii
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----
Section 1404. Payment Over of Proceeds Upon Dissolution, Etc. . . . 97
Section 1405. Default on Senior and Senior Subordinated Obligations. 98
Section 1406. Notices by Guarantor . . . . . . . . . . . . . . . . . 100
Section 1407. Subrogation of Securityholders and Guarantor . . . . . 100
Section 1408. Relative Rights Under Subordinated Guarantees . . . . 101
Section 1409. Subordination May Not Be Impaired by Guarantor . . . 101
Section 1410. Waivers by Guarantor . . . . . . . . . . . . . . . . . 102
Section 1411. Covenant Compliance by Guarantor . . . . . . . . . . . 102
Section 1412. Rights of Trustee and Paying Agent in Respect of
Subordinated Guarantees . . . . . . . . . . . . . . . 102
Section 1413. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 103
Section 1414. Rights of Trustee as a Holder of Senior and
Senior Subordinated Obligations of the Guarantor;
Preservation of Trustee's Rights . . . . . . . . . . . 104
Section 1415. Article Applicable to Paying Agents . . . . . . . . . 104
Section 1416. Distribution or Notice to Representative by the
Company and Guarantor . . . . . . . . . . . . . . . . 104
Section 1417. Reliance by Holders of Senior and Senior Subordinated
Obligations of the Guarantor on Subordination
Provisions . . . . . . . . . . . . . . . . . . . . . 104
Section 1418. Payment in Full . . . . . . . . . . . . . . . . . . . 105
Section 1419. No Suspension of Remedies . . . . . . . . . . . . . . 105
Section 1420. Article Fourteen Not to Prevent Events of Default. . . 105
Section 1421. Inapplicability of Subordination Provisions to Certain
Trust Monies and Certain Payments . . . . . . . . . . 105
Section 1422. Limitation of Guarantor's Liability . . . . . . . . . 106
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability of Article . . . . . . . . . . . . . . . 106
Section 1502. Repayment of Securities . . . . . . . . . . . . . . . 106
Section 1503. Exercise of Option . . . . . . . . . . . . . . . . . . 107
Section 1504. When Securities Presented for Repayment Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . 107
Section 1505. Securities Repaid in Part . . . . . . . . . . . . . . 108
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
ix
PAGE
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ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1601. Purposes for Which Meetings May Be Called . . . . . . 109
Section 1602. Call, Notice and Place of Meetings . . . . . . . . . 109
Section 1603. Persons Entitled to Vote at Meetings . . . . . . . . 109
Section 1604. Quorum; Action . 110
Section 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . 111
Section 1606. Counting Votes and Recording Action of Meetings . . . 112
ARTICLE SEVENTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1701. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . 112
Section 1702. Defeasance and Discharge . . . . . . . . . . . . . . 113
Section 1703. Covenant Defeasance . . . . . . . . . . . . . . . . . 113
Section 1704. Conditions to Defeasance or Covenant Defeasance . . . 114
Section 1705. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . . 116
Section 1706. Reinstatement . . . . . . . . . . . . . . . . . . . 117
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
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.
"Outstanding Senior Subordinated Securities" means the 7% Senior
Subordinated Debentures due 2003, Series A and B; the 10 1/4% Senior
Subordinated Notes due 2001; the 9 1/8% Senior Subordinated Notes due 1999;
and the 8 3/4% Senior Subordinated Reset Notes due 2001; in each case, of the
Guarantor.
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 and Senior Subordinated Obligations" of any Person means
(i) the Senior Obligations of such Person, (ii) any obligation of such
Person under, or any guarantee by such Person of, as the case may be, the
Outstanding Senior Subordinated Securities, (iii) any obligation of such
Person under, or any guarantee by such Person of, as the case may be, any
obligation of such Person under, or any guarantee of such Person of, as the
case may be, any Senior Subordinated Debt Securities, (iv) any obligation
of such Person to a third party or any guarantee by such Person of any
obligation to a third party (including, without limitation, any Affiliate
of such Person), in each case, whether now existing or hereafter created,
incurred or assumed, where such obligation or guarantee, as the case may be,
ranks pari passu with (A) the obligation of such Person under, or the
----------
guarantee by such Person of, as the case may be, the Outstanding Senior
Subordinated Securities or the Senior Subordinated Debt Securities or (B)
any other obligation of such Person to a third party or any other guarantee
by such Person of any obligation to a third party, whether now existing or
hereafter created, incurred or assumed which ranks pari passu with the
----------
Outstanding Senior Subordinated Securities or the Senior Subordinated Debt
Securities and (v) any obligation of such Person to a third party or any
guarantee by such Person of any obligation to a third party specified
to constitute "Senior and Senior Subordinated Obligations" with respect to the
Securities of such series pursuant to Section 301; provided, however, that the
------------------
obligations (but not the guarantees) of such Person described in any of
clauses (ii) through (v) above shall not include any obligation of such
Person to any Subsidiary of such Person or to any Person with respect to
which such Person is a Subsidiary; provided, further, however, that the
---------------------------
obligations and guarantees of such Person described inc clauses (ii)
through (v) above (and not excluded therefrom pursuant to the immediately
preceding proviso) shall include the principal, premium, if any, and
interest on, such obligations or guarantees, as the case may be.
"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
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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 by 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 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 of the types set forth in any of clauses (i) through (v) above
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 (other than, with respect to the Company and the Guarantor,
the Senior Subordinated Debt Securities and the Senior Subordinated
Guarantees, respectively) 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).
"Senior Subordinated Debt Indenture" means the Indenture among
the Company, the Guarantor and the Trustee relating to the Senior Subordinated
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 4.2 to such Registration Statement, as such Indenture may be
amended or supplemented from time to time.
"Senior Subordinated Debt Securities" means any of the Company's
Senior Subordinated Debt Securities issued pursuant to the Senior
Subordinated Debt Indenture.
"Senior Subordinated Guarantees" means any guarantees of the
Guarantor issued pursuant to the Senior Subordinated Debt Indenture.
"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.
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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 and Senior Subordinated 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;
(25) any provisions in modification of, in addition to or in
lieu of the provisions of Article Thirteen or Article Fourteen that
shall be applicable to the Securities of the series, and the obligations,
if any, under this Indenture to which the provisions of Article Thirteen
or Article Fourteen shall apply; and
(26) 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 $250,000,000 against the
Company which has become final and not subject to appeal, and the
continuance of any such judgment unstayed, in effect and unpaid for a
period of 90 days; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or, if
Guarantees are issued, the Guarantor 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.
61
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.
62
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
63
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
64
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
--------------------------------------------------
and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated Obligations of the Company or the
Guarantor (other than with respect to Senior and Senior Subordinated
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 and Senior
-------------------------------------------
and Senior Subordinated 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 and Senior Subordinated
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 and Senior Subordinated 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 and Senior
Subordinated 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
and Senior Subordinated
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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated Obligations of the Company
remaining unpaid, to the extent necessary to pay all Senior and Senior
Subordinated Obligations of the Company in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated
----------------------------------------------
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
and Senior Subordinated 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 and Senior Subordinated Obligations of the Company
shall have occurred and be continuing and shall have resulted in such Senior
and Senior Subordinated 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 and Senior
Subordinated Obligations of the Company shall have occurred and be
continuing permitting the holders of such Senior and Senior Subordinated
Obligations of the Company (or a trustee on behalf of the holders thereof)
to declare such Senior and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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
and Senior Subordinated Obligations of the Company, provided that in the
event there are no outstanding Senior and Senior Subordinated 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 and Senior Subordinated Obligations of the Company, and to the extent
of any such payment over the rights and
83
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
------------------------------------------
and Senior Subordinated Obligations.
-----------------------------------
Subject to the payment in full of all Senior and Senior
Subordinated 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 and Senior Subordinated 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 and Senior Subordinated Obligations of the Company to receive payments
and distributions of cash, property and securities applicable to the Senior
and Senior Subordinated 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 and
Senior Subordinated 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 and
Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated
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 and Senior Subordinated
Obligations of the Company on the other hand. Nothing contained in
84
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
and Senior Subordinated 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 and Senior Subordinated 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
and Senior Subordinated 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 and Senior Subordinated 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 and Senior
Subordinated Obligations of the Company, do any one or more of the
following: (1)
85
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior and Senior Subordinated Obligations of the
Company, or otherwise amend or supplement in any manner Senior and Senior
Subordinated Obligations of the Company or any instrument evidencing the
same or any agreement under which Senior and Senior Subordinated
Obligations of the Company are outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior and Senior Subordinated Obligations of the Company; (3) release any
Person liable in any manner for the collection of Senior and Senior
Subordinated 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 and Senior Subordinated 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
and Senior Subordinated Obligations of the Company (or a trustee therefor)
to establish that such notice has been given by a holder of Senior and
Senior Subordinated 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
and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior
--------------------------------------------------
Subordinated 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 and Senior
Subordinated Obligations of the Company which may at any time be held by it,
to the same extent as any other holder of Senior and Senior Subordinated
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
-------------------------------------------
and Senior Subordinated Obligations.
-----------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior and Senior Subordinated 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 and
Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior
Subordinated 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 and Senior Subordinated 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 and Senior Subordinated
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 and Senior Subordinated Obligations remaining unpaid, to the
extent necessary to pay all Senior and Senior Subordinated Obligations of
the Guarantor in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior and Senior Subordinated
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 and Senior Subordinated
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 and Senior Subordinated
----------------------------------------------
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
and Senior Subordinated 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 and Senior Subordinated Obligations of the Guarantor
shall have occurred and be continuing and shall have resulted in such Senior
and Senior Subordinated 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 and Senior
Subordinated Obligations of the Guarantor shall have occurred and be
continuing permitting the holders of such Senior and Senior Subordinated
Obligations of the Guarantor (or a trustee on behalf of the holders thereof)
to declare such Senior and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated Obligations of the Guarantor until the
earlier of (A) 180 days after such date and (B) the date, if any, on which
the Senior and Senior Subordinated Obligations of the Guarantor to which
such default relates are discharged or such default is waived by the holders
of such Senior and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior
Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and
Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated
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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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
and Senior Subordinated 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 and Senior Subordinated Obligations of the
Guarantor.
Section 1409. Subordination May Not Be Impaired by Guarantor.
----------------------------------------------
No right of any holder of Senior and Senior Subordinated
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.
95
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 and Senior Subordinated Obligations of
the Guarantor were issued, or a holder of an issue of Senior and Senior
Subordinated 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 and Senior
Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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 and Senior Subordinated 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
and Senior Subordinated Obligations of the Guarantor with the same rights it
would have if it were not Trustee.
With respect to the holders of Senior and Senior Subordinated
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 and Senior Subordinated 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 and Senior Subordinated
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 and Senior Subordinated 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 and Senior Subordinated
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 and Senior
--------------------------------------------------
Subordinated 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 and Senior
Subordinated Obligations of the Guarantor which may at any time be held by
it, to the same extent as any other holder of Senior and Senior Subordinated
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 and Senior Subordinated
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 and Senior Subordinated Obligations.
Section 1417. Reliance by Holders of Senior and Senior
----------------------------------------
Subordinated 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 and Senior Subordinated
Obligations of the Guarantor, whether such Senior and Senior Subordinated
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 and Senior Subordinated Obligations of the Guarantor and
such holder of Senior and Senior Subordinated
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 and Senior Subordinated 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 and
Senior Subordinated 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 and Senior Subordinated 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
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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.
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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
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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
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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
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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
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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.
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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
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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 4.7
- ---------------------------------------------------------------------------
VIACOM INC.
TO
HARRIS TRUST AND SAVINGS BANK,
Trustee
----------------------------------------------------
CONTINGENT VALUE RIGHTS
AGREEMENT
Dated as of _______ __, 199_
----------------------------------------------------
- ---------------------------------------------------------------------------
TABLE OF CONTENTS
--------------------------------
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Class B Common Stock . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . . 3
Control . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
Current Market Value . . . . . . . . . . . . . . . . . . . . 3
CVR Certificate . . . . . . . . . . . . . . . . . . . . . . 3
Default Amount . . . . . . . . . . . . . . . . . . . . . . . 3
Default Interest Rate . . . . . . . . . . . . . . . . . . . 3
Default Payment Date . . . . . . . . . . . . . . . . . . . . 3
Discount Rate . . . . . . . . . . . . . . . . . . . . . . . 4
Discounted Target Price . . . . . . . . . . . . . . . . . . 4
Disposition . . . . . . . . . . . . . . . . . . . . . . . . 4
____________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Agreement.
ii
Page
----
Disposition Payment Date . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . 4
Extended Maturity Date . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Independent Financial Expert . . . . . . . . . . . . . . . . 4
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . 4
Minimum Price . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . 6
Surviving Person . . . . . . . . . . . . . . . . . . . . . . 6
Target Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Valuation Period . . . . . . . . . . . . . . . . . . . . . . 6
vice president . . . . . . . . . . . . . . . . . . . . . . . 6
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . 6
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . 7
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . 8
Section 105. Notices, etc., to Trustee and Company . . . . . . . . . . . 9
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . 9
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . 10
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . 10
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . 10
Section 110. Benefits of Agreement . . . . . . . . . . . . . . . . . . . 10
Section 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 10
Section 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 10
Section 113. Separability Clause . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
CVR FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . 11
Section 202. Form of Trustee's Certificate of Authentication . . . . . . 12
iii
Page
----
ARTICLE THREE
THE CVRs
Section 301. Amount Unlimited; Issuable in Series; Terms . . . . . . . . 12
Section 302. Registrable Form . . . . . . . . . . . . . . . . . . . . . . 19
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . 19
Section 304. Temporary CVRs . . . . . . . . . . . . . . . . . . . . . . . 19
Section 305. Registration, Registration of Transfer and Exchange . . . . 20
Section 306. Mutilated, Destroyed, Lost and Stolen CVRs . . . . . . . . . 21
Section 307. Presentation of CVR Certificate . . . . . . . . . . . . . . 22
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 22
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FOUR
THE TRUSTEE
Section 401. Certain Duties and Responsibilities . . . . . . . . . . . . 23
Section 402. Certain Rights of Trustee . . . . . . . . . . . . . . . . . 24
Section 403. Not Responsible for Recitals or Issuance of CVRs . . . . . . 26
Section 404. May Hold CVRs . . . . . . . . . . . . . . . . . . . . . . . 26
Section 405. Money Held in Trust . . . . . . . . . . . . . . . . . . . . 26
Section 406. Compensation, Reimbursement and Indemnification of the
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 407. Disqualification; Conflicting Interests . . . . . . . . . . 27
Section 408. Corporate Trustee Required; Eligibility . . . . . . . . . . 27
Section 409. Resignation and Removal; Appointment of Successor . . . . . 28
Section 410. Acceptance of Appointment by Successor . . . . . . . . . . . 29
Section 411. Merger, Conversion, Consolidation or Succession to Business. 30
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 501. Disclosure of Names and Addresses of Holders . . . . . . . . 31
Section 502. Preservation of Information; Communications to Holders . . . 31
Section 503. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 32
Section 504. Reports by Company . . . . . . . . . . . . . . . . . . . . . 33
iv
Page
----
ARTICLE SIX
AMENDMENTS
Section 601. Amendments Without Consent of Holders . . . . . . . . . . . 34
Section 602. Amendments with Consent of Holders . . . . . . . . . . . . . 35
Section 603. Execution of Amendments . . . . . . . . . . . . . . . . . . 36
Section 604. Effect of Amendments . . . . . . . . . . . . . . . . . . . . 36
Section 605. Conformity with Trust Indenture Act . . . . . . . . . . . . 36
Section 606. Reference in CVRs to Amendments . . . . . . . . . . . . . . 36
ARTICLE SEVEN
COVENANTS
Section 701. Payment of Amounts, if Any, to Holders . . . . . . . . . . . 37
Section 702. Maintenance of Office or Agency . . . . . . . . . . . . . . 37
Section 703. Payments to Be Held in Trust . . . . . . . . . . . . . . . . 38
Section 704. Certain Purchases and Sales . . . . . . . . . . . . . . . . 38
Section 705. Written Statement to Trustee . . . . . . . . . . . . . . . . 39
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
Section 801. Event of Default Defined; Acceleration of Maturity; Waiver
of Default . . . . . . . . . . . . . . . . . . . . . . . 39
Section 802. Collection of Indebtedness by Trustee; Trustee May
Prove Debt . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 803. Application of Proceeds . . . . . . . . . . . . . . . . . . 43
Section 804. Suits for Enforcement . . . . . . . . . . . . . . . . . . . 44
Section 805. Restoration of Rights on Abandonment of Proceedings . . . . 44
Section 806. Limitations on Suits by Holders . . . . . . . . . . . . . . 44
Section 807. Unconditional Right of Holders to Institute Certain Suits . 45
Section 808. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default . . . . . . . . . . . . . . . . . . . . 45
Section 809. Control by Holders . . . . . . . . . . . . . . . . . . . . . 45
Section 810. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 46
v
Page
----
Section 811. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . 46
Section 812. Right of Court to Require Filing of Undertaking to
Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Company May Consolidate, Etc. . . . . . . . . . . . . . . . 47
Section 902. Successor Substituted . . . . . . . . . . . . . . . . . . . 48
Section 903. Opinion of Counsel to Trustee . . . . . . . . . . . . . . . 48
AGREEMENT, dated as of _______ __, 199_, between VIACOM INC., a
Delaware corporation (hereinafter called the "Company"), and HARRIS TRUST
AND SAVINGS BANK, trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Agreement to provide for the issuance from time to time of
contingent value rights (hereinafter called the "CVRs"), to be issued in
one or more series as provided in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the
consummation of the transactions referred to above, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the CVRs
or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Agreement, 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(a), any such item may, with
respect to any particular series of CVRs, be amended, or modified or
specified as being applicable;
(b) all accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation;
(c) 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;
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
2
(e) to the extent "cash", or "sum" or "amounts" is used it shall
refer to actual cash or securities given in lieu thereof.
Certain terms, used principally in Article Four, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" means a person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned person.
"Agreement" means this instrument as originally executed and as
it may from time to time be supplemented or amended pursuant to the
applicable provisions hereof.
"Authorized Newspaper" means The Wall Street Journal (Eastern
-----------------------
Edition), or if The Wall Street Journal (Eastern Edition) shall cease to be
-----------------------
published, or, if the publication or general circulation of The Wall Street
---------------
Journal (Eastern Edition) shall be suspended for whatever reason, such
- -------
other English language newspaper as is selected by the Company with general
circulation in The City of New York, New York.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day (other than a Saturday or a Sunday)
on which banking institutions in The City of New York, New York or in the
State of the principal office of the Trustee are not authorized or
obligated by law or executive order to close and, if the CVRs of a series
are listed on a national securities exchange, such exchange is open for
trading.
"Class B Common Stock" means the Class B Common Stock, par value
$.01 per share, of the Company and any other capital stock of the Company
into which such common stock may be converted or reclassified or that may
be issued in respect of, in exchange for, or in substitution of, such
common stock by reason of any stock splits, stock dividends, distributions,
mergers, consolidations or other like events.
3
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor Person shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Company" shall mean such successor Person. To the extent
necessary to comply with the requirements of the provisions of Trust
Indenture Act Sec.Sec. 310 through 317 as they are applicable to the Company,
the term "Company" shall include any other obligor with respect to the CVRs for
the purposes of complying with such provisions.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by the chairman of the Board of
Directors, the president, any vice president, the controller, the
treasurer, the secretary or any assistant secretary, and delivered to the
Trustee.
"Control" (including the terms "controlled", "controlled by" and
"under common control with") means the possession, directly or indirectly
or as trustee or executor, of the power to direct or cause the direction of
the management or policies of a person, whether through the ownership of
stock or as trustee or executor, by contract or otherwise.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Agreement is
located at 311 West Monroe Street, Chicago, Illinois 60606.
"Current Market Value" has the meaning set forth in Section
301(f).
"CVR Certificate" means, with respect to the CVRs of a series, a
certificate representing the CVRs of such series.
"Default Amount" means the amount, if any, by which the
Discounted Target Price exceeds the Minimum Price.
"Default Interest Rate", when used with respect to any CVR, means
the stated Default Interest Rate of such CVR determined pursuant to Section
3.01 hereof.
"Default Payment Date" means the date upon which the CVRs of a
series become due and payable pursuant to Section 801.
4
"Discount Rate" means the discount rate per annum upon which the
Target Price of CVRs of a series shall be discounted back upon a
Disposition or an Event of Default for such series.
"Discounted Target Price" means the Target Price or Target Prices
for CVRs of a series discounted by the Discount Rate from a Maturity Date
or an Extended Maturity Date, as the case may be, back to the Disposition
Payment Date or Default Payment Date, as the case may be, with respect to
CVRs of a series. In each case, upon each occurrence of an event specified
in Section 301(j), such Target Prices for such series, as they may have
been previously adjusted, shall be adjusted pursuant to Section 301(j).
"Disposition" means (i) a merger, consolidation or other business
combination involving the Company as a result of which no shares of Class B
Common Stock shall remain outstanding, (ii) a sale, transfer or other
disposition, in one or a series of transactions, of all or substantially
all of the assets of the Company or (iii) a reclassification of Class B
Common Stock as any other capital stock of the Company or any other Person;
provided, however, that neither clause (i) nor clause (ii) means a merger,
- -------- -------
consolidation or other business combination of Viacom and any subsidiary of
Viacom, or to a sale, transfer or other disposition by Viacom to any
subsidiary of Viacom. For purposes of this paragraph, "all or
substantially all of the assets of Viacom" shall mean properties and assets
contributing in the aggregate at least 80% of Viacom's total revenues as
reported in Viacom's last available periodic financial report (quarterly or
annual, as the case may be) filed with the Commission.
"Disposition Payment Date" has the meaning set forth in Section
301(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extended Maturity Date" means the date to which the Maturity
Date with respect to CVRs of a series has been extended one or more times
as specified pursuant to Section 301(a) hereof.
"Holder" means a Person in whose name a CVR is registered in the
Security Register.
"Independent Financial Expert" means an independent nationally
recognized investment banking firm.
"Maturity Date", when used with respect to any CVR, means the
date specified in such CVR as the maturity date for such CVR.
5
"Minimum Price", if any, when used with respect to any CVR, means
the minimum price or prices specified in such CVR. In each case, upon each
occurrence of an event specified in Section 301(j), such Minimum Prices
with respect to such CVRs, as they may have been previously adjusted, shall
be adjusted pursuant to Section 301(j).
"Officer's Certificate" means a certificate signed by the
chairman of the Board of Directors, the president, any vice president, the
controller, the treasurer, the secretary or any assistant secretary of the
Company in his or her capacity as such an officer, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be General Counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"Outstanding", when used with respect to CVRs or any series of
CVRs, means, as of the date of determination, all CVRs or all CVRs of such
series theretofore authenticated and delivered under this Agreement,
except:
(a) CVRs theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) From and after the earlier of the Default Payment Date, the
Disposition Payment Date, the Maturity Date or any Extended Maturity
Date, CVRs of such series, or portions thereof, for whose payment cash
or securities of the Company in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such CVRs; and
(c) CVRs of such series in exchange for or in lieu of which
other CVRs of such series have been authenticated and delivered
pursuant to this Agreement, other than any such CVRs of such series in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such CVRs are held by a bona fide purchaser in
whose hands the CVRs are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
Outstanding CVRs have given any request, demand, direction, consent or
waiver hereunder, CVRs of such series owned by the Company or any other
obligor upon the CVRs of such series 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, direction, consent or waiver, only
CVRs which the Trustee knows to be so owned shall be so disregarded.
6
"Paying Agent" means any Person authorized by the Company to pay
any amount specified in a CVR on behalf of the Company, which shall
initially be Harris Trust Company of New York.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned to the Corporate Trust Office and also means,
with respect to any particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Surviving Person" has the meaning set forth in Section 901.
"Target Price" when used with respect to any CVR, means the
target price or target prices specified in such CVR. In each case, upon
each occurrence of an event specified in Section 301(j), such Target
Prices, as they may have been previously adjusted, shall be adjusted
pursuant to Section 301(j).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Agreement was executed, except as
provided in Section 605.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Agreement, until a successor Trustee shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Trustee" shall mean such successor Trustee.
"Valuation Period" has the meaning set forth in Section 301(f).
"vice president", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title of "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Agreement, the Company shall
furnish to the Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Agreement (including any covenants,
compliance with which constitutes a condition
7
precedent) 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 Agreement
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 Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 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 may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
8
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement that
such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, 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 Agreement to be given or
taken by Holders of the Outstanding CVRs 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 agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 401) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of CVRs shall be proved by the Security
Register.
(d) At any time prior to (but not after) the evidencing to the
Trustee, as provided in this Section 104, of the taking of any action by
the Holders of the CVRs specified in this Agreement in connection with such
action, any Holder of a CVR the serial
9
number of which is shown by the evidence to be included among the serial
numbers of the CVRs of such series the Holders of which have consented to
such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Section 104, revoke such action
so far as concerns such CVR. Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Holder of any CVR
shall bind every future Holder of the same CVR or the Holder of every CVR
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, in respect of anything done, suffered or omitted to be
done by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such CVR.
Section 105. Notices, etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed, in writing, to or with the Trustee at its Corporate Trust
Office, Attention: Indenture Trust Division; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 1515
Broadway, New York, New York 10036, Attention: Treasury Department,
or at any other address previously furnished in writing to the Trustee
by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Except as otherwise expressly provided herein or otherwise
specified with respect to any CVRs pursuant to Section 301, where this
Agreement provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
10
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Agreement, then any method of
giving such notice as shall be satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Agreement
by any of the provisions of the Trust Indenture Act, such required
provision shall control.
Section 108. 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 109. Successors and Assigns.
----------------------
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Benefits of Agreement.
---------------------
Nothing in this Agreement or in the CVRs, express or implied,
shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Agreement or under any
covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and
of the Holders.
Section 111. Governing Law.
-------------
This Agreement and the CVRs shall be governed by, and be
construed in accordance with, the laws of the State of New York applicable
to contracts executed and performed entirely in that state.
Section 112. Legal Holidays.
--------------
In the event that a Maturity Date, an Extended Maturity Date, the
Disposition Payment Date or the Default Payment Date, as the case may be,
shall not be a Business Day, then (notwithstanding any provision of this
Agreement or the CVRs to the contrary other than a provision in the CVRs of
any series which specifically states that such provision shall
11
apply in lieu of this Section) payment on the CVRs need not be made on such
date, but may be made on the next succeeding Business Day with the same
force and effect as if made on a Maturity Date, an Extended Maturity Date,
the Disposition Payment Date or the Default Payment Date, as the case may
be.
Section 113. Separability Clause.
-------------------
In case any provision in this Agreement or in the CVRs 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.
ARTICLE TWO
CVR FORMS
Section 201. Forms Generally.
---------------
The CVRs of each series shall be in substantially the forms as
shall be established by or pursuant to a Board Resolution of the Company,
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange or as may be required by law or any rule or
regulation pursuant thereto, or as may be determined by officers executing
such CVRs, as evidenced by their execution of such CVRs. Any portion of
the text of any CVR may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the CVR.
The definitive CVRs shall be printed, lithographed or engraved on
steel engraved borders or produced by any combination of these methods or
may be produced in any other manner permitted by the rules of any
securities exchange on which the CVRs may be listed, all as determined by
the officers executing such CVRs, as evidenced by their execution of such
CVRs.
The Trustee's certificate of authentication on all CVRs shall be
in substantially the form set forth in this Article.
12
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the CVR Certificates referred to in the
within-mentioned Agreement.
HARRIS TRUST AND SAVINGS BANK,
(CHICAGO, IL)
Trustee and Transfer Agent and Registrar
By
--------------------------------------
Authorized Officer
ARTICLE THREE
THE CVRs
Section 301. Amount Unlimited; Issuable in Series; Terms.
-------------------------------------------
(a) The number of CVRs which may be authenticated and delivered
under this Agreement is unlimited. The CVRs 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 amendments to this Agreement, prior to the
issuance of CVRs of any series, any or all of the following, as applicable:
(1) the title of the CVRs of the series (which shall distinguish
the CVRs of the series from all other series of CVRs);
(2) any limit on the number of CVRs of the series that may be
authenticated and delivered under this Agreement (except for CVRs
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other CVRs of the series pursuant to
Section 304, 305, 306 or 606 and except for any CVRs which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
13
(4) the Maturity Date, the Extended Maturity Date(s), if any,
and the period(s) of time the notice of any extension of a Maturity
Date or Extended Maturity Date, as the case may be, must be furnished
to Holders prior to such extension;
(5) the Discount Rate(s), if any, the Default Interest Rate(s),
if any, the Target Price(s), if any, the Minimum Price(s), if any, the
method of determining the Current Market Value and the Valuation
Period(s) of the CVRs of the series, if any;
(6) the rate or rates at which the CVRs of the series will 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 date or dates on which any such interest shall be
payable and the record date or dates for any interest payable on any
such CVR 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;
(7) the place or places, if any, other than or in addition to
The City of New York and Chicago, Illinois, where any amounts owed, if
any, under the CVRs of the series shall be payable and, if different
than the location specified in Section 105, the place or places where
notices or demands to or upon the Company in respect of the CVRs of
the series and this Agreement may be served;
(8) the period or periods, if any, within which, the price or
prices at which the other terms and conditions upon which CVRs 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;
(9) any deletions from, changes in or additions to the Events of
Default or covenants of the Company as provided herein with respect to
CVRs of the series whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth
herein;
(10) the subordination provisions, if any, with respect to CVRs
of the series;
(11) whether and under what circumstances a determination may be
made that no amount is payable, with respect to the CVRs of the
series;
(12) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent; and
14
(13) 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 Agreement), including,
without limitation, any modifications of the definitions set forth
herein.
All CVRs of any one series shall be substantially identical
except 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 amendment to this
Agreement. Not all CVRs of any one series need be issued at the same time,
and, unless otherwise provided, as series may be reopened for issuances of
additional CVRs 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.
(b) Unless otherwise provided as contemplated by Section 301(a)
with respect to any series of CVRs, and subject to adjustment pursuant to
Section 301(j), Viacom shall pay to each Holder of a CVR for a particular
series on the Maturity Date for such series, unless Viacom shall, in its
sole discretion, extend a Maturity Date to an Extended Maturity Date, then
on such Extended Maturity Date or unless the Company shall, in its sole
discretion, extend such Extended Maturity Date to one or more further
Extended Maturity Dates, then on the final Extended Maturity Date, for each
CVR of such series held by such Holder an amount, if any, by which the
Target Price for such series exceeds the greater of (i) the Current Market
Value for such series and (ii) the Minimum Price for such series. Such
determinations by the Company absent manifest error shall be final and
binding on the Company and the Holders of such series. Such payment, if
any, shall be made in accordance with the provisions of Section 307 hereof.
(c) Unless otherwise provided as contemplated by Section 301(a)
with respect to any series of CVRs, the Company may at its option extend
the Maturity Date for such series to an Extended Maturity Date of a
particular series and the Company may at its option extend such Extended
Maturity Date, one or more times, to further Extended Maturity Dates for
such series. Such option or options shall be exercised by (i) publishing
notice of such extension in the Authorized Newspaper, and (ii) furnishing
notice, in the form set forth below, to the Trustee and each Holder of such
series of such extension, in each case, not less than one Business Day
(unless otherwise specified pursuant to Section 301(a) hereof) prior to the
Maturity Date for such series or an Extended Maturity Date for such series,
as the case may be; provided, however, that no defect in any such notice
-------- -------
shall affect the validity of the
15
extension of a Maturity Date for such series to an Extended Maturity Date
for such series or the validity of the extension of an Extended Maturity
Date for such series to further Extended Maturity Date(s) for such series,
and that any notice when published and mailed to the Trustee and a Holder
in the aforesaid manner shall be conclusively deemed to have been received
by such Holder whether or not actually received by such Holder.
* * * * * * *
16
VIACOM INC.
CONTINGENT VALUE RIGHTS
[Date]
NOTICE OF EXTENSION OF [MATURITY
DATE] [EXTENDED MATURITY DATE]
[ ______EXTENDED MATURITY DATE] TO _______________________
NOTICE IS HEREBY GIVEN THAT, pursuant to Section 301 of the
Contingent Value Rights Agreement, dated as of _______________ (the
"Agreement"), between Viacom Inc. (the "Company") and Harris Trust and
Savings Bank, as trustee (the "Trustee"), the Company has extended the
[Maturity Date] [Extended Maturity Date] on the Contingent Value Rights
[series] to _________ (the "[Extended Maturity Date"] "[Extended
Maturity Date"]). All terms used in this Notice which are defined in the
Agreement shall have the meanings assigned to them in the Agreement.
The amount payable (in cash or securities of the Company, at the
Company's sole option) to each Holder on the [Extended Maturity Date]
[________ Extended Maturity Date] for each CVR held by such Holder shall be
equal to [an amount, if any, by which the Target Price exceeds the greater
of (i) the Current Market Value and (ii) the Minimum Price].
[If applicable,] upon the consummation of a Disposition, the
Company shall pay to each Holder (in cash or securities of the Company, at
the Company's sole option) for each CVR held by such Holder an amount, if
any, as determined by the Company, by which the Discounted Target Price
exceeds the greater of (i) the fair market value, as determined by an
Independent Financial Expert of the consideration, if any, received for
each share of Class B Common Stock by the holder thereof as a result of
such Disposition and assuming that such holder did not exercise any right
of appraisal granted under law with respect to such Disposition and (ii)
the Minimum Price.
If an Event of Default occurs and is continuing, either the
Trustee or the Holders holding an aggregate of at least 33-1/3% of the
Outstanding CVRs of such series, by notice to the Company (and to the
Trustee if given by the Holders), may declare the CVRs of such series due
and payable, and upon such declaration, the Company shall pay to the Holder
(in cash or securities of the Company, at the Company's sole option) for
each CVR of such series held by the Holder the Default Amount[, if
applicable,] with interest at the Default Interest Rate from the Default
Payment Date through the date payment is made or duly provided for.
17
VIACOM INC.
* * * * * * *
(d) If applicable to a particular series, pursuant to Section
301 hereof, upon the consummation of a Disposition, the Company shall pay
(in the manner provided in Section 307) to each Holder for each Outstanding
CVR of such series held by such Holder an amount, if any, as determined by
the Company, by which the Discounted Target Price for such series exceeds
the greater of (i) the fair market value, as determined by an Independent
Financial Expert, of the consideration, if any, received for each share of
Class B Common Stock by the holder thereof as a result of such Disposition
and assuming that such holder did not exercise any right of appraisal
granted under law with respect to such Disposition and (ii) the Minimum
Price with respect to such series. Such determinations by the Company and
such Independent Financial Expert absent manifest error shall be final and
binding on the Company and the Holders. Such payment shall be made on the
date (the "Disposition Payment Date" for such series) established by the
Company, which in no event shall be more than 30 days after the date on
which the Disposition was consummated.
(e) As soon as practicable, the Company shall give the Trustee
and each Holder of CVRs of the applicable series notice of such Disposition
and the date on which the payment, if any, referred to in Section 301(d)
shall be made.
(f) The current market value per share of Class B Common Stock
(the "Current Market Value") shall be determined as specified pursuant to
Section 301(a) hereof.
"Valuation Period" means the specified trading period immediately
preceding (and including) the Maturity Date or one or more Extended
Maturity Dates, as the case may be, as specified pursuant to Section 301(a)
hereof.
The daily market price for each such trading day shall be: (A)
if the shares of Class B Common Stock are listed or admitted to trading on
any securities exchange, the closing price, regular way, on such day on the
principal securities exchange on which shares of Class B Common Stock are
traded, (B) if the shares of Class B Common Stock are not then listed or
admitted to trading on any securities exchange, the last reported sale
price on such day, or if no sale takes place on such day, the average of
the closing bid and asked prices on such day, as reported by a reputable
quotation source designated by the Company and (C) if the shares of Class B
Common Stock are not then listed or admitted to trading on any securities
exchange and no such reported sale price or bid and asked prices are
available, the average of the reported high bid and low asked prices on the
last day on which such information was available, as reported in the
Authorized Newspaper.
18
(g) In the event the Current Market Value for a series of CVRs
or fair market value, as the case may be, is determined by an Independent
Financial Expert, the Company shall cause the Independent Financial Expert
to deliver to the Company, with a copy to the Trustee, a value report (the
"Value Report") stating the methods of valuation considered or used and, if
applicable, the per share value of the Common Stock, and containing a
statement as to the nature and scope of the examination or investigation
upon which the determination of value was made. The Trustee shall make
available a copy of the Value Report to each Holder of such series of CVRs
who requests such Value Report. The determination of the Independent
Financial Expert as set forth in the Valuation Report absent manifest error
shall be final and binding on the Company and the Holders.
(h) Unless otherwise specified pursuant to Section 301(a)
hereof, other than in the case of interest on the Default Amount, no
interest shall accrue on any amounts payable on the CVRs to any Holder.
(i) Pursuant to Section 301(a), in the event that the Company
determines that no amount is payable on the CVRs of a series to the Holders
of such series on a Maturity Date for such series, or on any final Extended
Maturity Date for such series or the Disposition Payment Date for such
series, as the case may be, the Company shall give to the Trustee and each
Holder of such series notice of such determination. Upon making such
determination, absent manifest error, the CVR Certificates of such series
shall terminate and become null and void and the Holders thereof shall have
no further rights with respect thereto. The failure to give such notice or
any defect therein shall not affect the validity of such determination.
(j) In the event the Company shall in any manner subdivide (by
stock split, stock dividend or otherwise) or combine (by reverse stock
split or otherwise) the number of outstanding shares of Class B Common
Stock, the Company shall similarly subdivide or combine the CVRs for each
series Outstanding and shall appropriately adjust the Discounted Target
Price for such series, the Target Price for such series and the Minimum
Price for such series. Whenever an adjustment is made as provided in this
Section 301(j), the Company shall (i) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts accounting
for such adjustment, (ii) promptly file with the Trustee a copy of such
certificate and (iii) mail a brief summary thereof to each Holder for such
series. The Trustee shall be fully protected in relying on any such
certificate and on any adjustment therein contained. Such adjustment
absent manifest error shall be final and binding on the Company and the
Holders of such series. Each Outstanding CVR Certificate of such series
shall thenceforth represent that number of adjusted CVRs of such series
necessary to reflect such subdivision or combination, and reflect the
adjusted Discounted Target Price(s) for such series, Target Price(s) for
such series and Minimum Price(s), if any, for such series.
19
Section 302. Registrable Form.
----------------
The CVRs shall be issuable only in registered form.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The CVRs shall be executed on behalf of the Company by its
chairman of the Board of Directors or its president or any vice president
or its treasurer, under its corporate seal which may, but need not, be
attested. The signature of any of these officers on the CVRs may be manual
or facsimile.
CVRs bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such CVRs
or did not hold such offices at the date of such CVRs.
At any time and from time to time after the execution and
delivery of this Agreement, the Company may deliver CVRs of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such CVRs; and the
Trustee in accordance with such Company Order shall authenticate and
deliver such CVRs as provided in this Agreement and not otherwise.
Each CVR shall be dated the date of its authentication.
No CVR shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such CVR 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 CVR shall be conclusive evidence, and the
only evidence, that such CVR has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Agreement. Notwithstanding the foregoing, if any CVR shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such CVR to the Trustee for
cancellation as provided in Section 304 together with a written statement
stating that such CVR has never been issued and sold by the Company, for
all purposes of this Agreement such CVR shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Agreement.
Section 304. Temporary CVRs.
--------------
Pending the preparation of definitive CVRs of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary CVRs which are printed, lithographed, typewritten,
mimeographed or otherwise produced,
20
substantially of the tenor of the definitive CVRs in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such CVRs may determine with the
concurrence of the Trustee. Temporary CVRs may contain such reference to
any provisions of this Agreement as may be appropriate. Every temporary
CVR shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with
like effect, as the definitive CVRs.
If temporary CVRs of any series are issued, the Company will
cause definitive CVRs of that series to be prepared without unreasonable
delay. After the preparation of definitive CVRs of such series, the
temporary CVRs of such series shall be exchangeable for definitive CVRs of
such series upon surrender of the temporary CVRs of such series at the
office or agency of the Company designated for such purpose pursuant to
Section 702 for such series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary CVRs of any series the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like amount of definitive CVRs of the same series.
Until so exchanged, the temporary CVRs of any series shall in all respects
be entitled to the same benefits under this Agreement as definitive CVRs of
such series.
Section 305. Registration, Registration of Transfer and
------------------------------------------
Exchange.
--------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for each series of CVRs (the register maintained
in such office and in any other office or agency designated pursuant to
Section 702 being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of CVRs and of transfers of
CVRs. The Trustee is hereby initially appointed "Security Registrar" for
the purpose of registering CVRs and transfers of CVRs as herein provided.
In the event that the Trustee is no longer the Security Registrar, the
Company will furnish or cause to be furnished to the Trustee at such times
as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list, in such form as the Trustee may
reasonably require, of the names and the addresses of the Holders as of a
date not more than 15 days prior to the time such list is furnished.
Upon surrender for registration of transfer of any CVR of any
series at the office or agency of the Company designated pursuant to
Section 702, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one
or more new CVR Certificates of the same series representing the same
aggregate number of CVRs represented by the CVR Certificate so surrendered
that are to be transferred and the Company shall execute and the Trustee
shall authenticate and deliver, in the name of the transferor, one or more
new CVR Certificates of the same series represented by such CVR Certificate
that are not to be transferred.
At the option of the Holder, CVR Certificates of any series may
be exchanged for other CVR Certificates of the same series that represent
in the aggregate the same
21
number of CVRs as the CVR Certificates surrendered at such office or
agency. Whenever any CVR Certificates are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
CVR Certificates of the same series which the Holder making the exchange is
entitled to receive.
All CVRs issued upon any registration of transfer or exchange of
CVRs shall be the valid obligations of the Company, evidencing the same
right, and entitled to the same benefits under this Agreement, as the CVRs
surrendered upon such registration of transfer or exchange.
Every CVR presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar for
such series, 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 CVRs, 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
CVRs, other than exchanges pursuant to Section 304 or not involving any
transfer.
Section 306. Mutilated, Destroyed, Lost and Stolen CVRs.
------------------------------------------
If (a) any mutilated CVR of any series is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any CVR, and there is
delivered to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such CVR has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request
the Trustee shall authenticate and deliver, in exchange for any such
mutilated CVR or in lieu of any such destroyed, lost or stolen CVR, a new
CVR Certificate of the same series of like tenor and amount of CVRs,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen CVR has
become or is to become due and payable within 15 days, the Company in its
discretion may, instead of issuing a new CVR Certificate of the same
series, pay such CVR on the applicable Maturity Date, Extended Maturity
Date, the Disposition Payment Date or the Default Payment Date, as the case
may be.
Upon the issuance of any new CVRs 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.
22
Every new CVR of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen CVR shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen CVR shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Agreement equally and
proportionately with any and all other CVRs of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen CVRs.
Section 307. Presentation of CVR Certificate.
-------------------------------
Unless otherwise provided as contemplated by Section 301 with
respect to any series of CVRs, payment of any amounts on the CVRs shall be
made only upon presentation by the Holder thereof at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The
City of New York, or the Corporate Trust Office and at any other office or
agency maintained by the Company for such purpose. Unless otherwise
provided as contemplated by Section 301 with respect to any series of CVRs,
such payment shall be made, either, in the Company's sole discretion, (i)
in such coin or currency of the United States of America as at the time is
legal tender for the payment of public and private debts; provided,
--------
however, the Company may pay such amounts by its check payable in such
- -------
money or (ii) by the equivalent fair market value (as determined by an
Independent Financial Expert) of securities of the Company, including,
without limitation, common stock or preferred stock, options or warrants
therefor, other securities convertible into or exchangeable for common
stock or preferred stock, notes, debentures, derivative securities or any
other security of the Company now existing or hereafter created or any
combination of the foregoing. Such securities shall be offered pursuant to
registration under the Securities Act or under an exemption thereof and the
type and the terms of such securities shall be at the Company's sole
discretion.
Section 308. Persons Deemed Owners.
---------------------
Prior to the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any CVR is registered as the
owner of such CVR for the purpose of receiving payment on such CVR and for
all other purposes whatsoever, whether or not such CVR be overdue, and
neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All CVRs surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any CVRs
previously authenticated and delivered hereunder which the Company
23
may have acquired in any manner whatsoever, and all CVRs so delivered shall
be promptly cancelled by the Trustee. No CVRs shall be authenticated in
lieu of or in exchange for any CVRs cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled CVRs held
by the Trustee shall be disposed of as directed by a Company Order.
ARTICLE FOUR
THE TRUSTEE
Section 401. Certain Duties and Responsibilities.
-----------------------------------
(a) With respect to the Holders of CVRs issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
CVRs of any series and after the curing or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event
of Default with respect to the CVRs of any series has occurred (which has
not been cured or waived), the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) In the absence of bad faith on its part, prior to the
occurrence of an Event of Default and after the curing or waiving of all
such Events of Default which may have occurred, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
------
(1) this Subsection (c) shall not be construed to limit the
effect of Subsections (a) and (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) no provision of this Agreement 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
24
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; and
(4) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 809 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement.
(d) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 402. Certain Rights of Trustee.
-------------------------
The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Trustee. Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d) and Section 401 hereof:
(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, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement 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;
25
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement at the request or
direction of any of the Holders pursuant to this Agreement, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security,
or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in aggregate number of the CVRs
then Outstanding; provided that, if the payment within a reasonable
--------
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Company upon
demand; 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.
(h) the permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee
shall be liable for its negligence, bad faith or willful misconduct;
(i) the Trustee shall not be required to give any note or surety
in respect of the execution of the said trusts and powers or otherwise
in respect of the premises; and
(j) except for (i) a default under Section 801(a) and (ii) any
other event of which the Trustee has "actual knowledge," which event,
with the giving of notice or the passage of time or both, would
constitute an Event of Default with respect to a series of CVRs, the
Trustee shall not be deemed to have notice of any default or event
unless specifically notified in writing of such event by the Company
or the Holders of not less than 33-1/3% in aggregate number of
Outstanding CVRs of such series; as used herein, the term "actual
knowledge" means the actual fact or statement of knowing, without any
duty to make any investigation without regard thereto.
26
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 403. Not Responsible for Recitals or Issuance of CVRs.
------------------------------------------------
The recitals contained herein and in the CVRs, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the CVRs. The Trustee shall not be
accountable for the use or application by the Company of CVRs or the
proceeds thereof.
Section 404. May Hold CVRs.
-------------
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of CVRs, and, subject to Sections 407 and 412, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 405. 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.
Section 406. Compensation, Reimbursement and Indemnification of
--------------------------------------------------
the Trustee.
-----------
The Company agrees
(a) to pay to the 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 upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and
27
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the 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 this trust, 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, including the enforcement of this Section 406.
When the Trustee incurs expenses or renders services after a
Default specified in Section 801(c) or 801(d) occurs, the reasonable
expenses and the compensation for services (including the reasonable fees
and expenses of its agents and counsel) are intended to constitute expenses
of administration under any bankruptcy law.
Section 407. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall be subject to the provisions of Section 310(b)
of the Trust Indenture Act during the period of time provided for therein.
Nothing herein shall prevent the Trustee from filing with the Commission
the application referred to in the penultimate paragraph of Section 310(b)
of the Trust Indenture Act.
Section 408. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State
authority and, to the extent there is such an institution eligible and
willing to serve, having an office or agency in The City of New York or the
City of Chicago. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 409. 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 under Section
410.
28
(b) The Trustee, or any trustee or trustees hereafter appointed,
may resign with respect to the CVRs of one or more series at any time by
giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the CVRs of such series.
(c) The Trustee may be removed at any time with respect to the
CVRs of any series by (i) the Company, by a Board Resolution or (ii) an Act
of the Holders of a majority of the Outstanding CVRs of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 407(a) after
written request therefor by the Company or by any Holder who for at
least six months has been a bona fide Holder of a CVR of the series to
which the Trustee has a conflicting interest, or
(2) the Trustee shall cease to be eligible under Section 408 and
shall fail to resign after written request therefor by the Company 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 case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all CVRs, or (ii) the Holder of any CVR who has
been a bona fide Holder of a CVR for at least six months (and, in the case
of Section 408(d)(1) above, who is a Holder of a CVR of a 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 and the appointment of a successor Trustee.
(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 CVRs of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee with respect
to the CVRs of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the CVRs of one or more
or all of such series and that at any time there shall be only one Trustee
with respect to the CVRs of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the CVRs of any
29
series shall be appointed by Act of the Holders of a majority of the
Outstanding CVRs 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 Section 410, become the
successor Trustee with respect to the CVRs of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the CVRs of any series shall have been so
appointed by the Company or the Holders of the CVRs of that series and so
accepted appointment, any Holder of a CVR who has been a bona fide Holder
of a CVR 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
CVRs of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the CVRs of any series and each
appointment of a successor Trustee with respect to the CVRs of any series
by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of CVRs of such series as their names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the CVRs of such series and the address
of its Corporate Trust Office. If the Company fails to send such notice
within ten days after acceptance of appointment by a successor Trustee, the
successor Trustee with respect to the CVRs of such series shall cause the
notice to be mailed at the expense of the Company.
Section 410. Acceptance of Appointment by Successor.
--------------------------------------
(a) In the case of the appointment hereunder of a successor
Trustee with respect to all CVRs, every such successor Trustee appointed
hereunder shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the CVRs of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the CVRs 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 CVRs of that or those series to which
30
the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all CVRs, 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 CVRs 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 Agreement 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 CVRs of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all
property and duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the CVRs of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 411. 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
CVRs 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 CVRs
so authenticated with the same effect as if such successor Trustee had
itself authenticated such CVRs; and such certificate shall have the full
force which it is anywhere in the CVRs or in this
31
Agreement provided that the certificate of the Trustee shall have; provided
--------
that the right to adopt the certificate of authentication of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 501. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of CVRs, by receiving and holding the same, agrees
with the Company and the Trustee that none of the Company or the Trustee or
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders of CVRs in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 502. Preservation of Information; Communications to
----------------------------------------------
Holders.
-------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 501 and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 501 upon receipt of a new list so furnished.
(b) If three or more Holders of any series of CVRs (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish
to the Trustee reasonable proof that each such applicant has owned a CVR of
such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of CVRs of such series with respect to their
rights under this Agreement or under the CVRs of such series and is
accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application at its election, either
(1) afford such applicants access to the information with
respect to such series of CVRs preserved at the time by the Trustee in
accordance with Section 502(a), or
(2) inform such applicants as to the approximate number of
Holders of CVRs of such series whose names and addresses appear in the
information preserved
32
at the time by the Trustee in accordance with Section 502(a), and as
to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of CVRs of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 502(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of CVRs of such series or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of CVRs, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 502(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 502(b).
Section 503. Reports by Trustee.
------------------
Within 60 days after July 15 of each year commencing with the
July 15 occurring after the initial issuance of CVRs hereunder, the Trustee
shall transmit by mail to the Holders of CVRs of any series with respect to
which it acts as Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, and to the Company a brief
report dated as of such July 15 which satisfies the requirements of
Section 313(a) of the Trust Indenture Act.
33
Section 504. Reports by Company.
------------------
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations; 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 with the conditions and covenants of this
Agreement as may be required from time to time by such rules and
regulations.
The Trustee shall transmit by mail to all Holders of CVRs of any
series with respect to which it acts as Trustee, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to Subsections (a) and
(b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE SIX
AMENDMENTS
Section 601. Amendments Without Consent of Holders.
-------------------------------------
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more amendments hereto, in form satisfactory to the
Trustee, for any of the following purposes:
34
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the CVRs any property or assets; or
(b) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the CVRs; or
(c) to add to the covenants of the Company for the benefit of
the Holders of all or any series of CVRs such further covenants,
restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of
CVRs of such series, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default with
respect to such series permitting the enforcement of all or any of the
several remedies provided in this Agreement as herein set forth;
provided that in respect of any such additional covenant, restriction,
--------
condition or provision such amendment may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the CVRs of the series affected thereby to waive such an
Event of Default; or
(d) to establish the form or terms of CVRs of any series as
permitted by Sections 201 or 301; or
(e) pursuant to Section 301, to establish subordination
provisions which apply to a particular series or all series of CVRs;
or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the CVRs of one or
more series and to add to or change any of the provisions of this
Agreement 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 410(b); or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Agreement; provided that in
--------
each case, such provisions shall not adversely affect the interests of
the Holders of any series.
35
Section 602. Amendments with Consent of Holders.
----------------------------------
With the consent of the Holders of not less than a majority of
the Outstanding CVRs of each series affected by such amendment, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into one or
more amendments hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement which affect such series or of modifying in any manner the rights
of the Holders of CVRs of such series under this Agreement; provided,
--------
however, that no such amendment shall, without the consent of the Holder of
- -------
each Outstanding CVR of each such series affected thereby:
(a) modify the definition of Maturity Date, any Extended
Maturity Date, Disposition Payment Date, Default Payment Date, Current
Market Value, Valuation Period, Minimum Price, Discounted Target
Price, Target Price, Discount Rate, Default Amount or Default Interest
Rate or modify Section 301(j) or otherwise extend the maturity of the
CVRs or reduce the amounts payable in respect of the CVRs;
(b) reduce the amount of the Outstanding CVRs of any series, the
consent of whose Holders is required for any such amendment; or
(c) modify any of the provisions of this Section, except to
increase any such percentage or to provide that certain other
provisions of this Agreement cannot be modified or waived without the
consent of the Holder of each CVR of each series affected thereby.
An amendment which changes or eliminates any covenant or other
provision of this Agreement which has expressly been included solely for
the benefit of one or more particular series of CVRs, or which modifies the
rights of the Holders of CVRs of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Agreement of the Holders of CVRs of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such act shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any amendment pursuant to the provisions of this Section, the Company shall
mail a notice thereof by first class mail to the Holders of CVRs of each
series affected by such amendment at their addresses as they shall appear
on the Security Register, setting forth in general terms the substance of
such amendment. Any failure of the Company to mail such notice, or any
36
defect therein, shall not, however, in any way impair or affect the
validity of any such amendment.
Section 603. Execution of Amendments.
-----------------------
In executing any amendment permitted by this Article, the Trustee
shall be entitled to receive, and (subject to Section 401) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement. The
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 604. Effect of Amendments.
--------------------
Upon the execution of any amendment under this Article, this
Agreement shall be modified in accordance therewith, and such amendment
shall form a part of this Agreement for all purposes; and every Holder of
CVRs of each series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 605. Conformity with Trust Indenture Act.
-----------------------------------
Every amendment executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section 606. Reference in CVRs to Amendments.
-------------------------------
CVRs of any series authenticated and delivered after the
execution of any amendment 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 amendment. If the Company shall so
determine, new CVRs of any series so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any such amendment may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding CVRs of such series.
37
ARTICLE SEVEN
COVENANTS
Section 701. Payment of Amounts, if Any, to Holders.
--------------------------------------
The Company will duly and punctually pay the amounts, if any, in
the manner provided for in Section 307 on the CVRs in accordance with the
terms of the CVRs of such series and this Agreement.
Section 702. Maintenance of Office or Agency.
-------------------------------
As long as any of the CVRs of a series remain Outstanding, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where CVRs of such series may be presented or surrendered
for payment. The Company also will maintain in the Borough of Manhattan,
The City of New York, or Chicago, Illinois, an office or agency (i) where
CVRs of such series may be surrendered for registration of transfer or
exchange and (ii) where notices and demands to or upon the Company in
respect of the CVRs of such series and this Agreement may be served.
Unless otherwise specified with respect to any CVRs as contemplated by
Section 301 with respect to a series of CVRs, the Company hereby initially
designates the office of Harris Trust Company of New York at 77 Water
Street, 4th Floor, New York, New York 10005 as the office or agency of the
Company where each series of CVRs may be presented or surrendered for
payment, and the Corporate Trust Office as the office or agency where each
series of CVRs may be surrendered for registration of transfer or exchange
and where such notices or demands may be served, in each case, unless the
Company shall designate and maintain some other office or agency for one or
more of such purposes. The Company will give prompt written notice to the
Trustee of 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 or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands of
such series may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the CVRs
of one or more series may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation; provided,
--------
however, that no such designation or rescission shall in any manner relieve
- -------
the Company of its obligations as set forth in the preceding paragraph for
CVRs of any series. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the
location of any such office or agency.
38
Section 703. Payments to Be Held in Trust.
----------------------------
If the Company shall at any time act as its own Paying Agent with
respect to CVRs of any series, it will, on or before each Maturity Date,
Extended Maturity Date, Disposition Payment Date or Default Payment Date,
with respect to CVRs of that series, as the case may be, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum or
securities sufficient to pay the amounts, if any, so becoming due until
such sums or securities 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 the
CVRs of any series, it will, on or before the Maturity Date, an Extended
Maturity Date, the Disposition Payment Date or the Default Payment Date,
with respect to CVRs of that series, as the case may be, deposit with a
Paying Agent a sum or securities in same day funds sufficient to pay the
amount, if any, so becoming due, such sum or securities to be held in trust
for the benefit of the Persons entitled to such amount, 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 CVRs
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 (A) such Paying Agent will hold all sums
or securities held by it for the payment of any amount payable on CVRs of
that series in trust for the benefit of the Persons entitled thereto until
such sums or securities shall be paid to such Persons or otherwise disposed
of as herein provided and (B) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the CVRs of that series)
to make any payment on the CVRs of that series when the same shall be due
and payable.
Except as provided in the CVRs of any series, any money (or
securities of the Company) deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment on any CVR of any
series and remaining unclaimed for one year after a Maturity Date, an
Extended Maturity Date, a Disposition Payment Date or a Default Payment
Date, as the case may be, shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and
the Holder of such CVR shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof and all liability of the
Trustee or such Paying Agent with respect to such trust money (or
securities of the Company) shall thereupon cease.
39
Section 704. Certain Purchases and Sales.
---------------------------
Except as provided in the CVRs of any series, the Company will
not, and will not permit any of its subsidiaries or controlled Affiliates
to, purchase any shares of Class B Common Stock in open market
transactions, privately negotiated transactions or otherwise, on any day
during the period commencing 10 trading days before the Valuation Period
for any series of CVRs and ending on the last day of the Valuation Period
for such series of CVRs, except with respect to employee benefit plans and
other incentive compensation arrangements.
Section 705. Written Statement to Trustee.
----------------------------
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Agreement. For purposes of this
Section, such compliance shall be determined without regard to any period
of grace or requirement of notice under this Agreement.
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
Section 801. Event of Default Defined; Acceleration of Maturity;
---------------------------------------------------
Waiver of Default.
-----------------
"Event of Default", with respect to CVRs of any series, means
each one of the following events which shall have occurred and be
continuing (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):
(a) default in the payment of all or any part of the amounts
payable in respect of any of the CVRs of that series as and when the
same shall become due and payable either at a Maturity Date, an
Extended Maturity Date, the Disposition Payment Date or otherwise; or
(b) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the CVRs (other than a covenant
or warranty in respect of the CVRs a default in whose performance or
whose breach is elsewhere in this
40
Section specifically dealt with or which has expressly been included
in this Agreement solely for the benefit of a series of CVRs other
than that series), and continuance of such default or breach for a
period of 90 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% of the Outstanding CVRs
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
(c) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Company or for any substantial part of its property or ordering
the winding up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(d) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the
Company or for any substantial part of its property, or make any
general assignment for the benefit of creditors; or
(e) any other Event of Default provided with respect to CVRs of
that series.
If an Event of Default with respect to CVRs of any series described above
occurs and is continuing, then, and in each and every such case, unless all
of the CVRs of that series shall have already become due and payable,
either the Trustee or the Holders of not less than 33-1/3% of the CVRs of
that series then Outstanding hereunder by notice in writing to the Company
(and to the Trustee if given by the Holders) may declare the CVRs of that
series to be due and payable immediately, and upon any such declaration the
Default Amount shall become immediately due and payable and, thereafter,
shall bear interest at the Default Interest Rate until payment is made to
the Trustee.
The foregoing provisions, however, are subject to the condition
that if, at any time after the CVRs of any series shall have been so
declared due and payable, and before any judgment or decree for the payment
of the amounts due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum or
securities sufficient to pay all amounts which shall have become due
otherwise than by acceleration (with interest upon such overdue amount at
the Default Interest Rate to the
41
date of such payment or deposit) and such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred and all advances
made, by the Trustee except as a result of negligence or bad faith, and if
any and all Events of Default under this Agreement with respect to such
series, other than the nonpayment of the amounts which shall have become
due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority of
all the CVRs of that series then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to the CVRs
of such series and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent default or shall impair any right consequent thereof.
Section 802. Collection of Indebtedness by Trustee; Trustee May
--------------------------------------------------
Prove Debt.
----------
The Company covenants that in case default shall be made in the
payment of all or any part of the CVRs of any series when the same shall
have become due and payable; whether at a Maturity Date, an Extended
Maturity Date, the Disposition Payment Date, the Default Payment Date or
otherwise, then upon demand of the Trustee, the Company will pay to the
Trustee for the benefit of the Holders of the CVRs of such series the whole
amount, in cash or securities of the Company (at the option of the Company)
that then shall have become due and payable on all CVRs of such series
(with interest from the date due and payable to the date of such payment
upon the overdue amount at the Default Interest Rate); and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee
and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its
negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums or
securities so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon such CVRs of that
series and collect in the manner provided by law out of the property of the
Company or other obligor upon such CVRs, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Company or any other obligor upon the CVRs of a series under Title 11 of
the United States Code or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company
or its
42
property or such other obligor, or in case of any other judicial
proceedings relative to the Company or other obligor upon the CVRs of any
series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of any CVRs
shall then be due and payable as therein expressed or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to
the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
owing and unpaid in respect of the CVRs of that 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
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence or bad faith) and of the Holders allowed in any
judicial proceedings relative to the Company or other obligor upon the
CVRs of such series, or to the creditors or property of the Company or
such other obligor;
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
receivable with respect to the claims of the Holders and of the
Trustee on their behalf and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Holders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Holders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 406.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the CVRs or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
43
All rights of action and of asserting claims under this
Agreement, or under any of the CVRs, may be enforced by the Trustee without
the possession of any of the CVRs or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Holders.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Agreement
to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of CVRs of any series with respect to which it is
Trustee, and it shall not be necessary to make any Holders of such CVRs
parties to any such proceedings.
Section 803. Application of Proceeds.
-----------------------
Any monies (including CVRs of the Company) collected by the
Trustee pursuant to this Article in respect of any CVRs shall be applied in
the following order at the date or dates fixed by the Trustee upon
presentation of the several CVRs in respect of which monies (including CVRs
of the Company) have been collected and stamping (or otherwise noting)
thereon the payment in exchange for the presented CVRs if only partially
paid or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses in respect of which
monies have been collected, including reasonable compensation to the
Trustee and each predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith, and all other amounts due to the
Trustee or any predecessor Trustee pursuant to Section 406;
SECOND: To the payment of the whole amount then owing and unpaid
upon all the CVRs, with interest at the Default Interest Rate on all
such amounts, and in case such moneys shall be insufficient to pay in
full the whole amount so due and unpaid upon the CVRs, then to the
payment of such amounts without preference or priority of any CVR over
any other CVR, ratably to the aggregate of such amounts due and
payable; and
THIRD: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
44
Section 804. Suits for Enforcement.
---------------------
In case an Event of Default has occurred, has not been waived and
is continuing, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Agreement by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Agreement or in aid of the exercise of any
power granted in this Agreement or to enforce any other legal or equitable
right vested in the Trustee by this Agreement or by law.
Section 805. Restoration of Rights on Abandonment of
---------------------------------------
Proceedings.
-----------
In case the Trustee shall have proceeded to enforce any right
under this Agreement and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Company, the Trustee and the Holders
shall continue as though no such proceedings had been taken.
Section 806. Limitations on Suits by Holders.
-------------------------------
No Holder of any CVR of any series shall have any right by virtue
or by availing itself of any provision of this Agreement to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Agreement, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official or for
any other remedy hereunder, unless such Holder previously shall have given
to the Trustee written notice of default and of the continuance thereof as
hereinbefore provided with respect to the CVRs of that series, and unless
also the Holders of not less than 33-1/3% of the CVRs of that series then
Outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 809; it
being understood and intended, and being expressly covenanted by the taker
and Holder of every CVR with every other taker and Holder and the Trustee,
that no one or more Holders of CVRs of the same series shall have any right
in any manner whatever by virtue or by availing itself or themselves of any
provision of this Agreement to effect, disturb or prejudice the rights of
any other such Holder of CVRs of the same series, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce
any right under this Agreement, except in the manner herein provided
45
and for the equal, ratable and common benefit of all Holders of CVRs of the
same series. For the protection and enforcement of the provisions of this
Section, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 807. Unconditional Right of Holders to Institute Certain
---------------------------------------------------
Suits.
-----
Notwithstanding any other provision in this Agreement and any
provision of any CVR, the right of any Holder of any CVR to receive payment
of the amounts payable in respect of such CVR on or after the respective
due dates expressed in such CVR, or to institute suit for the enforcement
of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 808. Powers and Remedies Cumulative; Delay or Omission
-------------------------------------------------
Not Waiver of Default.
---------------------
Except as provided in Section 806, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder to exercise
any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 806, every power and remedy given by this
Agreement or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or
by the Holders.
Section 809. Control by Holders.
------------------
The Holders of a majority of the CVRs of any series at the time
Outstanding 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
CVRs of such series by this Agreement; provided that such direction shall
--------
not be otherwise than in accordance with law and the provisions of this
Agreement; and provided further that (subject to the provisions of Section
-------- -------
401) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that
the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee
shall determine that the action
46
or proceedings so directed would involve the Trustee in personal liability
or if the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the CVRs of such series not
joining in the giving of said direction, it being understood that (subject
to Section 401) the Trustee shall have no duty to ascertain whether or not
such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Agreement shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which
is not inconsistent with such direction or directions by Holders.
Section 810. Waiver of Past Defaults.
-----------------------
Prior to the declaration of the acceleration of the maturity of
the CVRs of any series as provided in Section 801, in the case of a default
or an Event of Default with respect to CVRs of such series specified in
clause (b), (c) or (d) of Section 801, the Holders of CVRs of a majority of
all the CVRs of that series then Outstanding may waive any such default or
Event of Default, and its consequences, except a default in respect of a
covenant or provisions hereof which cannot be modified or amended without
the consent of the Holder of each CVR affected. In the case of any such
waiver, the Company, the Trustee and the Holders of the CVRs of that series
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default with respect to CVRs of such series arising therefrom shall be
deemed to have been cured, and not to have occurred for every purpose of
this Agreement; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 811. Trustee to Give Notice of Default, but May Withhold
---------------------------------------------------
in Certain Circumstances.
------------------------
The Trustee shall transmit to the Holders, as the names and
addresses of such Holders appear on the Security Register, notice by mail
of all defaults which have occurred with respect to the CVRs of any series,
such notice to be transmitted within 90 days after the occurrence thereof
unless such defaults shall have been cured before the giving of such notice
(the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or
lapse of time or both would become, an Event of Default with respect to the
CVRs of such series); provided that, except in the case of default in the
--------
payment of the amounts payable in respect of any of the CVRs of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board
47
of directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of CVRs of such series.
Section 812. Right of Court to Require Filing of Undertaking to
--------------------------------------------------
Pay Costs.
---------
All parties to this Agreement agree, and each Holder of any CVR
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith or the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders holding in the aggregate more than 10% of the CVRs of any
series Outstanding or to any suit instituted by any Holder for the
enforcement of the payment of any CVR of such series on or after the due
date expressed in such CVR.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Company May Consolidate, Etc.
-----------------------------
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety (the "Surviving
Person") shall be a corporation, partnership or trust organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume payment
of amounts on all the CVRs and the performance of every covenant of
this Agreement on the part of the Company to be performed or observed;
48
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Surviving
Person, the Company or any Subsidiary as a result of such transaction
as having been incurred by the Surviving Person, the Company or such
Subsidiary at the time of such transaction, no Event of Default shall
have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officer's
Certificate, stating that such consolidation, merger, conveyance,
transfer or lease complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
For purposes of this Section 901, "convey, transfer or lease its
properties and assets substantially as an entirety" shall mean properties
and assets contributing in the aggregate at least 80% of the Company's
total revenues as reported in the Company's last available periodic
financial report (quarterly or annual, as the case may be) filed with the
Commission.
Section 902. Successor Substituted.
---------------------
Upon any consolidation of or merger by the Company with or into
any other Person, or any conveyance, transfer or lease of the properties
and assets substantially as an entirety to any Person in accordance with
Section 901, the Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if the Surviving Person had been named as the
Company herein, and thereafter, except in the case of a lease, the
predecessor corporation shall be relieved of all obligations and covenants
under this Agreement and the CVRs.
Section 903. Opinion of Counsel to Trustee.
-----------------------------
The Trustee, subject to the provisions of Sections 401 and 402,
may receive an Opinion of Counsel, prepared in accordance with Sections 103
and 104, as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Agreement.
* * * * * * *
49
This Agreement may be signed in any number of counterparts with
the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
VIACOM INC.
By:
-------------------------------------
Title:
Attest:
----------------------
Title:
HARRIS TRUST AND SAVINGS BANK
By:
-------------------------------------
Title:
Attest:
----------------------
Title:
EXHIBIT 5
(212) 848-7325
May 8, 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"), including the
Prospectus included therein at the time the Registration Statement
is declared effective (the "Prospectus"), 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"), (iii) subordinated debt securities of Viacom
("Subordinated Debt Securities" and, together with the Senior Debt
Securities and the Senior Subordinated Debt Securities, the "Debt
Securities"), (iv) guarantees by Viacom International of the Debt
Securities (the "Guarantees"), (v) shares of Viacom's preferred
stock ("Preferred Stock"), and (vi) contingent value rights of
Viacom ("CVRs"), 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, sale and distribution of
the Securities under the Registration Statement will not exceed
$3.0 billion.
90447.6/NYL3
Viacom Inc. 2 May 8, 1995
Viacom International Inc.
The Debt Securities are to be issued from time to time
as (i) senior indebtedness of Viacom under an indenture among
Viacom, as issuer, Viacom International, as guarantor, and The
First National Bank of Boston, trustee, in substantially the
form included in the Registration Statement as Exhibit 4.1, (ii)
senior subordinated indebtedness of Viacom under an indenture
among Viacom, as issuer, Viacom International, as guarantor, and
The First National Bank of Boston, trustee, in substantially
the form included in the Registration Statement as Exhibit 4.2
or (iii) subordinated indebtedness of Viacom under an indenture among
Viacom, as issuer, Viacom International, as guarantor, and The
First National Bank of Boston, trustee, in substantially
the form included in the Registration Statement as Exhibit 4.6
(collectively, the "Indentures"). The CVRs are to be issued under
a contingent value rights agreement (the "CVR Agreement") among
Viacom and Harris Trust and Savings Bank, CVR trustee, in
substantially the form included in the Registration Statement as
Exhibit 7.
In so acting, we have examined the Registration
Statement, the Indentures, the CVR Agreement and Viacom's Restated
Certificate of Incorporation, as amended. We have also examined and
relied as to factual matters upon the representations, warranties and
and other statements 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 (a) the Indentures have been duly executed and
delivered by the parties thereto, (b) Debt Securities and
Guarantees, if any, have been duly authorized, executed
and issued in accordance with the provisions of the applicable
Indenture (including the provisions of the Indenture
regarding establishment of the form of Debt Securities and
Guarantees), (c) such Debt Securities have been authenticated
by the trustee under the applicable Indenture and (d) such Debt
Securities with Guarantees, if any, endorsed thereon have been
delivered for due consideration in the manner and on the terms
described in the Prospectus, as supplemented by the applicable
prospectus supplement, such Debt Securities and Guarantees
will have been validly issued and will constitute valid
and binding obligations of Viacom and Viacom International,
Viacom Inc. 3 May 8, 1995
Viacom International Inc.
respectively, enforceable against Viacom and Viacom
International in accordance with their respective terms
and entitled to the benefits of the applicable Indenture,
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 (a) the terms of Preferred Stock have been
duly authorized by Viacom, (b) certificates representing such
shares of Preferred Stock have been duly executed by Viacom
and delivered for due consideration in the manner and on the
terms described in the Prospectus, as supplemented by the
applicable prospectus supplement, and (c) all other action
necessary for issuance of such shares of Preferred Stock has
been taken, including the adoption and filing in Delaware of
a Certificate of Designations, such shares of Preferred Stock
will be duly and validly issued, fully paid and non-assessable;
4. the CVR Agreement has been duly authorized by Viacom;
and
5. when (a) the CVR Agreement has been duly executed and
delivered by the parties thereto, (b) CVRs have been duly
authorized, executed and issued in accordance with the
provisions of the CVR Agreement (including the provisions of
the CVR Agreement regarding establishment of the form of
CVRs), (c) such CVRs have been authenticated by the CVR trustee
under the CVR Agreement and (d) such CVRs have been delivered
for due consideration in the manner and on the terms described
in the Prospectus, as supplemented by the applicable prospectus
supplement, such CVRs will have been validly issued and will
constitute valid and binding obligations of Viacom, enforceable
against Viacom in accordance with their terms and entitled to
the benefits of the CVR Agreement, 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).
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.
Very truly yours,
/s/ Shearman & Sterling
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
May 8, 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 Note 2., 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
May 8, 1995
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 3 to 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, subordinated debt securities, contingent value rights 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
May 8, 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 Viacom Inc. Amendment No. 3 to Form
S-3 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,
May 2, 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
May 8, 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, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign (1) a registration
statement 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 part of or in connection with such registration statements or reports
or amendments thereto; granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that the said
attorney-in-fact and agent, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name this 2nd day of
May, 1995.
/s/ Steven R. Berrard
----------------------
Steven R. Berrard
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, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign (1) a registration
statement 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 part of or in connection with such registration statements or reports
or amendments thereto; granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that the said
attorney-in-fact and agent, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto signed my name this 2nd day of
May, 1995.
/s/ George D. Johnson, Jr.
---------------------------
George D. Johnson, Jr.
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 part of or in connection with such registration statements or reports
or amendments thereto; granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully for all intents and purposes as 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 2nd day of
May, 1995.
/s/ Shari Redstone
----------------------
Shari Redstone
EXHIBIT 25.1
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, SENIOR SUBORDINATED, AND 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 7 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, Senior Subordinated,
and 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
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) ____
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Judith Bartolini, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2527
(Name, address and telephone number for agent for service)
VIACOM INC.
(Name of obligor)
Delaware 04-2949533
(State of Incorporation) (I.R.S. Employer Identification No.)
200 Elm Street
Dedham, Massachusetts 02026
(Address of principal executive offices)
Contingent Value Rights
(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.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Hillenbrand Industries, Inc., File
No. 33-44086, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervision or examining
authority.
(included as Exhibit B on page 3 of this statement)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Harris Trust and Savings Bank, a corporation organized and
existing under the laws of the State of Illinois, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Chicago, and State of
Illinois, on the 8th day of May, 1995.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Amy S. Roberts
------------------------------------------------------
Amy S. Roberts
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State
authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefore.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Amy S. Roberts
------------------------------------------------------
Amy S. Roberts
Assistant Vice President
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 31, 1994, as published in accordance
with a call made by the State Banking Authority and by the Federal Reserve
Bank of The Seventh Reserve District.
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, and Foreign and Domestic Subsidiaries, at the close
of business on December 31, 1994, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the
Commissioner of Banks and Trust Companies of the State of Illinois and by
the Federal Reserve Bank of this District.
Bank's Transit Number 71000288
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin $1,226,753
Interest bearing balances $732,083
Securities:
a. Held-to-maturity securities $718,072
b. Available-for-sale securities $1,795,896
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 IBFs:
Federal funds sold $374,200
Securities purchased under agreements to resell$9,831
Loans and lease financing receivables:
Loans and leases, net of unearned income $6,371,039
LESS: Allowance for loan and lease losses $90,492
-------------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b) $6,280,547
Assets held in trading accounts $169,830
Premises and fixed assets (including capitalized leases) $136,703
Other real estate owned $1,780
Investments in unconsolidated subsidiaries and associated companies $37
Customer's liability to this bank on acceptances outstanding $69,447
Intangible assets $24,851
Other assets $403,300
--------
TOTAL ASSETS $11,944,330
===========
LIABILITIES
Deposits:
In domestic offices $4,529,148
Non-interest bearing $2,659,945
Interest bearing $1,869,203
In foreign offices, Edge and Agreement subsidiaries, and IBFs $2,486,418
Non-interest bearing $31,903
Interest bearing $2,454,515
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 IBFs:
Federal funds purchased $1,179,441
Securities sold under agreements to repurchase $1,643,381
Trading Liabilities $149,363
Other borrowed money:
a. With original maturity of one year or less $667,231
b. With original maturity of more than one year $14,268
Bank's liability on acceptances executed and outstanding $69,447
Subordinated notes and debentures $235,000
Other liabilities $240,902
--------
TOTAL LIABILITIES $11,214,599
===========
EQUITY CAPITAL
Common stock $100,000
Surplus $275,000
a. Undivided profits and capital reserves $375,032
b. Net unrealized holding gains (losses) on available-for-sale securities ($20,301)
---------
TOTAL EQUITY CAPITAL $729,731
========
Total liabilities, limited-life preferred stock, and equity capital $11,944,330
===========
I, Paul Skubic, Controller of the above-named bank, do hereby declare that
this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief,
PAUL SKUBIC
1/27/95
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of
our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and the Commissioner of Banks and Trust Companies of the State of Illinois
and is true and correct.
DONALD S. HUNT,
RICHARD E. TERRY,
JAMES J. GLASSER,
Directors.
