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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
-----------------------------------------------
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): December 12, 1995
VIACOM INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-9553 04-2949533
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(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification
Incorporation) Number)
1515 Broadway, New York, New York 10036
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(Address of principal executive offices) (Zip Code)
Registrants's telephone number, including area code: (212) 258-6000
--------------
Item 5. Other Events.
------------
On December 12, 1995, Viacom Inc. ("Viacom") and Viacom International
Inc. ("Viacom International", and together with Viacom, the "Registrants")
entered into an underwriting agreement (the "Underwriting Agreement", a copy of
which is attached hereto as Exhibit 1.1) with Goldman, Sachs & Co., Bear,
Stearns & Co. Inc., Lehman Brothers Inc. and Smith Barney Inc. (the
"Underwriters"), including the Viacom Inc./Viacom International Inc.
Underwriting Agreement Senior Debt Securities Standard Provisions (Offered
Securities) dated May 18, 1995.
On December 15, 1995, pursuant to the Underwriting Agreement, Viacom
issued and sold and the Underwriters purchased $350,000,000 aggregate principal
amount of Viacom's 6.75% Senior Notes due 2003 (the "Senior Notes") and
$200,000,000 aggregate principal amount of Viacom's 7.625% Senior Debentures due
2016 (the "Senior Debentures" and together with the Senior Notes the "Senior
Securities"), at initial public offering prices of 99.903% and 99.290% of the
principal amounts of the Senior Notes and the Senior Debentures, respectively,
which yielded aggregate proceeds to Viacom of $544,303,000.
Forms of the Senior Notes and the Senior Debentures, including the
guarantees endorsed thereon, are attached hereto as Exhibits 4.1 and 4.2,
respectively. The Senior Securities were (i) registered under the Securities
Act of 1933, as amended, pursuant to a Registration Statement on Form S-3 (Reg.
No. 33-53485) and (ii) issued under an Indenture, dated as of May 15, 1995 (the
"Indenture"), among Viacom, Viacom International, as guarantor, and State Street
Bank and Trust Company, as successor to The First National Bank of Boston,
trustee, as supplemented by the First Supplemental Indenture thereto, dated as
of May 24, 1995 (the "First Supplemental Indenture"), and as further
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1, dated as of December 15, 1995 (the "Second Supplemental Indenture"). Copies
of the Indenture, the First Supplemental Indenture, and the Second Supplemental
Indenture and Amendment No. 1 are attached hereto as Exhibits 4.3, 4.4 and 4.5,
respectively.
Item 7. Financial Statements and Exhibits.
----------------------------------
(c) The following exhibits are filed as part of this report on Form 8-K:
1.1 Underwriting Agreement, dated December 12, 1995, among Viacom Inc.,
Viacom International Inc., Goldman, Sachs & Co., Bear, Stearns & Co.
Inc., Lehman Brothers Inc. and Smith Barney Inc.
4.1 Form of 6.75% Senior Notes due 2003, including the form of guarantee
endorsed thereon.
4.2 Form of 7.625% Senior Debentures due 2016, including the form of
guarantee endorsed thereon.
4.3 Indenture dated as of May 15, 1995 among Viacom Inc., Viacom
International Inc., as guarantor, and State Street Bank and Trust
Company, as successor to The First National Bank of Boston, trustee.
4.4 First Supplemental Indenture dated as of May 24, 1995 among Viacom
Inc., Viacom International Inc., as guarantor, and State Street Bank
and Trust Company, as successor to The First National Bank of Boston,
trustee.
4.5 Second Supplemental Indenture and Amendment No. 1 dated as of
December 15, 1995 among Viacom Inc., Viacom International Inc., as
guarantor, and State Street Bank and Trust Company, trustee.
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
VIACOM INC.
Date: December 15, 1995 By: /s/ Michael D. Fricklas
------------------------------
Name: Michael D. Fricklas
Title: Senior Vice President,
Deputy General Counsel
EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement, dated December 12, 1995, among Viacom
Inc., Viacom International Inc., Goldman, Sachs & Co., Bear,
Stearns & Co. Inc., Lehman Brothers Inc. and Smith Barney Inc.
4.1 Form of 6.75% Senior Notes due 2003, including the form of
guarantee endorsed thereon.
4.2 Form of 7.625% Senior Debentures due 2016, including the form of
guarantee endorsed thereon.
4.3 Indenture dated as of May 15, 1995 among Viacom Inc., Viacom
International Inc., as guarantor, and State Street Bank and Trust
Company, as successor to The First National Bank of Boston,
trustee.
4.4 First Supplemental Indenture dated as of May 24, 1995 among
Viacom Inc., Viacom International Inc., as guarantor, and State
Street Bank and Trust Company, as successor to The First National
Bank of Boston, trustee.
4.5 Second Supplemental Indenture and Amendment No. 1 dated as of
December 15, 1995 among Viacom Inc., Viacom International Inc.,
as guarantor, and State Street Bank and Trust Company, trustee.
Exhibit 1.1
UNDERWRITING AGREEMENT
December 12, 1995
VIACOM INC.
VIACOM INTERNATIONAL INC.
c/o Viacom Inc.
1515 Broadway
New York, New York 10036
Dear Sirs:
We understand that Viacom Inc. (the "Company") proposes to
issue and sell $350,000,000 aggregate principal amount of 6.75% Senior Notes due
2003 (the "Senior Notes") and $200,000,000 aggregate principal amount of 7.625%
------------
Senior Debentures due 2016 (the "Senior Debentures" and, together with the
-----------------
Senior Notes, the "Senior Securities"), each guaranteed by Viacom International
-----------------
Inc. (the "Guarantor"). The Senior Securities are also hereinafter referred to
---------
as the "Offered Securities". All references herein, and in the document entitled
------------------
Viacom Inc. Underwriting Agreement Senior Debt Securities Standard Provisions
(Offered Securities) dated May 18, 1995 (the "Standard Agreement"), to the
------------------
Senior 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, each underwriter named below (the "Underwriters") has
------------
agreed, severally, to purchase from the Company, at the respective principal
amounts of the Senior Securities set forth opposite its name below, and the
Company has agreed to sell to the underwriters, severally, the entire principal
amount of the Senior Securities being offered, at a purchase price of 99.278%
and 98.415% of the principal amount of the Senior Notes and the Senior
Debentures, respectively, plus in each case accrued interest, if any, from
December 15, 1995, to the date of payment and delivery:
2
Principal
Amount of
Underwriter Senior Notes
- ----------- ------------
Goldman, Sachs & Co. $105,000,000
Bear, Stearns & Co. Inc. 105,000,000
Lehman Brothers Inc. 70,000,000
Smith Barney Inc. 70,000,000
----------
Total $350,000,000
===========
Principal
Amount of
Underwriter Senior Debentures
- ---------- -----------------
Goldman, Sachs & Co. $60,000,000
Bear, Stearns & Co. Inc. 60,000,000
Lehman Brothers Inc. 40,000,000
Smith Barney Inc. 40,000,000
----------
Total $200,000,000
===========
The Underwriters will pay for the Offered Securities upon
delivery thereof at the Company's offices at 10:00 a.m. (New York time) on
December 15, 1995, or at such other time, not later than 5:00 p.m. (New York
time) on December 18, 1995, as shall be designated by the Underwriters. The time
and date of such payment and delivery are hereinafter referred to as the Closing
Date.
3
The Offered Securities shall have the terms set forth in the
Prospectus dated May 10, 1995, and the Prospectus Supplement dated December 12,
1995, including the following:
Terms of Senior Securities:
Maturity Dates: Senior Notes: January 15, 2003
Senior Debentures: January 15, 2016
Interest Rates: Senior Notes: 6.75%
Senior Debentures: 7.625%
Redemption Provisions: None for either series of the Senior
Securities
Interest Payment Dates: January 15 and July 15, commencing
July 15, 1996 for each series
of the Senior Securities
(Interest accrues from
December 15, 1995)
Ranking: The Senior Securities will be
senior indebtedness of the
Company issued under the
Indenture dated as of May 15,
1995 among the Company, Viacom
International Inc., as
guarantor, and State Street
Bank and Trust Company, as
successor to The First National
Bank of Boston, trustee, as
supplemented by the First
Supplemental Indenture thereto,
and as further supplemented and
amended by the Second
Supplemental Indenture and
Amendment No. 1 thereto, dated
as of December 15, 1995 (as so
supplemented and amended, the
"Indenture").
---------
Form: Each series of the Offered
Securities will be issued in
the form of one or more fully
Registered Global Securities
which will be deposited with,
or on behalf of, The Depository
Trust Company (the
"Depository") and registered in
----------
the name of Cede & Co., the
Depository's nominee.
Other Terms: Payment for each series of the
Offered Securities will be made
by wire transfer in immediately
available funds.
4
All provisions contained in the Standard Agreement, 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 (including the representations and
warranties of the Company set forth in Section 1 of the Standard Agreement which
shall be deemed to have been made as of the date hereof), except (i) to the
extent a provision in the Standard Agreement is inconsistent herewith the
provision herein shall control and (ii) that if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control (including, without limitation, any reference to an indenture in Section
1(e) of the Standard Agreement shall be a reference to the Indenture as defined
herein).
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,
GOLDMAN, SACHS & CO.
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
SMITH BARNEY INC.
By: Goldman, Sachs & Co.
By: /s/ Goldman, Sachs & Co.
---------------------------
Name:
Title:
Accepted:
VIACOM INC. VIACOM INTERNATIONAL INC.
By: /s/ Vaughn A. Clarke By: /s/ Vaughn A. Clarke
---------------------- ----------------------
Name: Vaughn A. Clarke Name: Vaughn A. Clarke
Title: Senior Vice President, Title: Senior Vice President,
Treasurer Treasurer
[FORM OF SENIOR NOTE] EXHIBIT 4.1
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
(as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this certificate may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor Depository or a
nominee of such successor Depository.
VIACOM INC.
6.75% Senior Notes due 2003
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $______________
CUSIP: 925524AE0
Viacom Inc., a Delaware corporation (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _________, or
registered assigns, the principal sum of ___________________ on January 15,
2003, at the office or agency of the Company referred to below, and to pay
interest thereon on July 15, 1996 and semi-annually thereafter, on January 15
and July 15 in each year, from December 15, 1995, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, at
the rate of 6.75% per annum, until the principal hereof is paid or duly provided
for, and (to the extent lawful) to pay on demand interest on any overdue
interest at the rate borne by the Securities from the date on which such overdue
interest becomes payable to the date payment of such interest has been made or
duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid, in immediately available funds, to the Person in whose name this
Security (or one or
2
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the July 1 or January 1,
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest,
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities, may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made at the
Corporate Trust Office of the Trustee or such other office or agency of the
Company as may be designated for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided however, that each installment of interest
and principal on this Security may at the Company's option be paid in
immediately available funds by transfer to an account maintained by the payee
located in the United States.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), unlimited in aggregate principal
amount, issued and to be issued in one or more series under an indenture dated
as of May 15, 1995 among the Company, Viacom International Inc., as guarantor
(the "Guarantor") and State Street Bank and Trust Company, as successor to The
First National Bank of Boston, trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture dated as of May 24, 1995 among the Company, the
Guarantor and the Trustee, as further supplemented and amended by the Second
Supplemental Indenture and Amendment No. 1 dated as of December 15, 1995 among
the Company, the Guarantor and the Trustee (as so supplemented and amended, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of a series designated as 6.75% Senior Notes due 2003, limited in aggregate
principal amount to $350,000,000. This Security is a global Security
representing $___________ of the Securities.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
3
The Securities of this series are not subject to any sinking fund and
are not subject to redemption prior to maturity.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company, the Guarantor and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected thereby. The
Indenture also contains provisions permitting the Holders of not less than
specified percentages in aggregate principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all the Securities of
such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
4
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
Boston, Massachusetts or at such other office or agency as the Company may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantor, the
Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
If at any time, (i) the Depository is at any time unwilling or unable
to continue as Depository and a successor Depository is not appointed by the
Company within 90 days, or (ii) the Company determines that the Securities shall
no longer be represented by a global Security or Securities, then the Company
will execute and the Trustee will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of this Security in exchange for
this Security. Such Securities in definitive registered form shall be
registered in such names and issued in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of State Street Bank and Trust Company, the Trustee under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: December , 1995 VIACOM INC.,
as Issuer
By
---------------------------------
Attest:
- ------------------------------
Authorized Signature
6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By
----------------------------------
Authorized Signatory
Dated: December , 1995
7
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor", which term includes any successor corporation under the
Indenture referred to in the Security upon which this Guarantee is endorsed),
hereby fully and unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed the due and punctual payment of the principal
of and interest (including, in case of default, interest on principal and, to
the extent permitted by applicable law, on overdue interest), if any, on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon declaration of acceleration or otherwise,
according to the terms thereof and of the Indenture referred to therein. In
case of the failure of Viacom Inc. or any successor thereto (herein called the
"Company") punctually to pay any such principal or interest, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon redemption,
upon declaration of acceleration or otherwise, as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the identity of the Company, the validity,
regularity or enforceability of this Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of this
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee or the Indenture referred to in
this Security; provided however, that the Guarantor shall not be entitled to
enforce or to receive any payment arising out of, or based upon, such right of
subrogation until the principal of and interest on all Securities of the series
of which the Security upon which this Guarantee is endorsed constitutes a part
shall have been indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee would
constitute or result in a fraudulent transfer or conveyance for purposes of, or
result in a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law, then the liability of
the Guarantor hereunder shall be reduced to the extent necessary to eliminate
such fraudulent transfer or conveyance or violation under the applicable
fraudulent transfer or conveyance or similar law.
8
If the Trustee or the Holder of the Security upon which this Guarantee
is endorsed is required by any court or otherwise to return to the Company or
the Guarantor, or any custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in respect of the
Security upon which this Guarantee is endorsed, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five of the Indenture for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of New York.
Subject to the next following paragraph, the Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Guarantor have
been done and performed and have happened in due compliance with all applicable
laws.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on the Security upon which this
Guarantee is endorsed has been signed by the Trustee under the Indenture
referred to in this Security.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed by its Chairman of the Board, or its Vice Chairman of the Board, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries, manually or in facsimile.
Dated: December , 1995 VIACOM INTERNATIONAL INC.
By:
-------------------------------------
ATTEST:
------------------
[FORM OF SENIOR DEBENTURE] EXHIBIT 4.2
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
(as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this certificate may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor Depository or a
nominee of such successor Depository.
VIACOM INC.
7.625% Senior Debentures due 2016
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $___________
CUSIP: 925524AF7
Viacom Inc., a Delaware corporation (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _________, or
registered assigns, the principal sum of ___________________ on January 15, 2016
at the office or agency of the Company referred to below, and to pay interest
thereon on July 15, 1996 and semi-annually thereafter, on January 15 and July 15
in each year, from December 15, 1995, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of 7.625%
per annum, until the principal hereof is paid or duly provided for, and (to the
extent lawful) to pay on demand interest on any overdue interest at the rate
borne by the Securities from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid, in
immediately available funds, to the Person in whose name this Security (or one
2
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the July 1 or January 1,
as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and such defaulted interest,
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities, may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made at the
Corporate Trust Office of the Trustee or such other office or agency of the
Company as may be designated for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided however, that each installment of interest
and principal on this Security may at the Company's option be paid in
immediately available funds by transfer to an account maintained by the payee
located in the United States.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), unlimited in aggregate principal
amount, issued and to be issued in one or more series under an indenture dated
as of May 15, 1995 among the Company, Viacom International Inc., as guarantor
(the "Guarantor") and State Street Bank and Trust Company, as successor to The
First National Bank of Boston, trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture dated as of May 24, 1995 among the Company, the
Guarantor and the Trustee, as further supplemented and amended by the Second
Supplemental Indenture and Amendment No. 1 dated as of December 15, 1995 among
the Company, the Guarantor and the Trustee (as so supplemented and amended, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of a series designated as 7.625% Senior Notes due 2016, limited in aggregate
principal amount to $200,000,000. This Security is a global Security
representing $___________ of the Securities.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
3
The Securities of this series are not subject to any sinking fund and
are not subject to redemption prior to maturity.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company, the Guarantor and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected thereby. The
Indenture also contains provisions permitting the Holders of not less than
specified percentages in aggregate principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all the Securities of
such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
4
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
Boston, Massachusetts or at such other office or agency as the Company may
designate, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantor, the
Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
If at any time, (i) the Depository is at any time unwilling or unable
to continue as Depository and a successor Depository is not appointed by the
Company within 90 days, or (ii) the Company determines that the Securities shall
no longer be represented by a global Security or Securities, then the Company
will execute and the Trustee will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of this Security in exchange for
this Security. Such Securities in definitive registered form shall be
registered in such names and issued in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of State Street Bank and Trust Company, the Trustee under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: December , 1995 VIACOM INC.,
as Issuer
By
---------------------------------
Attest:
- ------------------------------
Authorized Signature
6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By
------------------------------------------
Authorized Signatory
Dated: December , 1995
7
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor", which term includes any successor corporation under the
Indenture referred to in the Security upon which this Guarantee is endorsed),
hereby fully and unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed the due and punctual payment of the principal
of and interest (including, in case of default, interest on principal and, to
the extent permitted by applicable law, on overdue interest), if any, on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon declaration of acceleration or otherwise,
according to the terms thereof and of the Indenture referred to therein. In
case of the failure of Viacom Inc. or any successor thereto (herein called the
"Company") punctually to pay any such principal or interest, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon redemption,
upon declaration of acceleration or otherwise, as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the identity of the Company, the validity,
regularity or enforceability of this Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of this
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee or the Indenture referred to in
this Security; provided however, that the Guarantor shall not be entitled to
enforce or to receive any payment arising out of, or based upon, such right of
subrogation until the principal of and interest on all Securities of the series
of which the Security upon which this Guarantee is endorsed constitutes a part
shall have been indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee would
constitute or result in a fraudulent transfer or conveyance for purposes of, or
result in a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law, then the liability of
the Guarantor hereunder shall be reduced to the extent necessary to eliminate
such fraudulent transfer or conveyance or violation under the applicable
fraudulent transfer or conveyance or similar law.
8
If the Trustee or the Holder of the Security upon which this Guarantee
is endorsed is required by any court or otherwise to return to the Company or
the Guarantor, or any custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in respect of the
Security upon which this Guarantee is endorsed, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five of the Indenture for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of New York.
Subject to the next following paragraph, the Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Guarantor have
been done and performed and have happened in due compliance with all applicable
laws.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on the Security upon which this
Guarantee is endorsed has been signed by the Trustee under the Indenture
referred to in this Security.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed by its Chairman of the Board, or its Vice Chairman of the Board, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries, manually or in facsimile.
Dated: December , 1995 VIACOM INTERNATIONAL INC.
By:
----------------------------------
ATTEST:
-----------------------
Exhibit 4.3
===========================================================================
VIACOM INC.,
Issuer
and
VIACOM INTERNATIONAL INC.,
Guarantor
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
---------------------------------------
Indenture
Dated as of May 15, 1995
---------------------------------------
Senior Debt Securities
----------------------
===========================================================================
VIACOM INTERNATIONAL INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 15,1995
----------------------------------------------
Trust Indenture Indenture
Act Section Section
- ----------------- -------------
Sec. 310 (a)(1) . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . 608
Sec. 312 (c) . . . . . . . . . . . . . . . . . 701
Sec. 314 (a) . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . 1008(a)
(c)(1) . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . 102
Sec. 315 (b) . . . . . . . . . . . . . . . . . 601
Sec. 316 (a)(last
sentence) . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . 104(e)
Sec. 317 (a)(1) . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . 1003
Sec. 318 (a) . . . . . . . . . . . . . . . . . 108
(c) . . . . . . . . . . . . . . . . . 108
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
-----------------
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE GUARANTOR . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . 3
Cedel S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request or Company Order . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default Amount . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euro Security . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ii
Page
----
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantor Obligations . . . . . . . . . . . . . . . . . . . . . . 5
Guarantor Request or Guarantor Order . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 6
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . 6
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 9
possessions . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 9
Principal Property . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 10
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . 10
Specified Currency . . . . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
Page
----
United States Person . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Depositary . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 11
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 12
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . 12
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . 13
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, Etc., to Trustee, Company or Guarantor . . . . 15
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 16
SECTION 107. Language of Notices, Etc . . . . . . . . . . . . . . . . 17
SECTION 108. Trust Indenture Act . . . . . . . . . . . . . . . . . . 17
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . 17
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . 18
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . 18
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . 18
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . 18
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 18
SECTION 115. Submission to Jurisdiction; Appointment of Agent for
Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 19
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 20
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . 22
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . 26
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer and Exchange . . 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset. . . . . . . . . . . . . . . . . . . . . . . . . . 37
iv
Page
----
SECTION 308. Optional Extension of Stated Maturity . . . . . . . . . 40
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . 41
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . 43
SECTION 312. Judgments . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . 43
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . 45
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 45
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . 47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . 50
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 506. Application of Money Collected . . . . . . . . . . . . . 51
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 51
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . 52
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . 53
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . 53
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . 53
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 54
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . 54
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . 54
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . 55
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SECTION 603. Not Responsible for Recitals or Issuance of Securities . 56
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . 56
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . 57
SECTION 606. Compensation, Reimbursement and Indemnification of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . 58
SECTION 608. Resignation and Removal; Appointment of Successor . . . 58
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . 60
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . 64
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . 64
SECTION 703. Reports by Company and the Guarantor . . . . . . . . . . 64
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . 65
SECTION 902. Supplemental Indentures with Consent of Holders . . . . 66
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . 68
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 68
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 68
SECTION 906. Reference in Securities to Supplemental Indentures . . . 69
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest . . 69
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 69
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SECTION 1003. Money for Security Payments to Be Held in Trust . . . . 71
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . 73
SECTION 1005. Maintenance of Principal Properties . . . . . . . . . . 73
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . 73
SECTION 1007. Additional Amounts . . . . . . . . . . . . . . . . . . 74
SECTION 1008. Compliance Certificate . . . . . . . . . . . . . . . . 75
SECTION 1009. Waiver of Certain Covenants . . . . . . . . . . . . . . 75
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 76
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . 76
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . 76
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 77
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . 78
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . 78
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . 79
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 80
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . 80
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . 81
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1302. Execution and Delivery of Guarantees . . . . . . . . . 83
SECTION 1303. Limitation of Guarantor's Liability . . . . . . . . . . 83
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . 84
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SECTION 1402. Repayment of Securities . . . . . . . . . . . . . . . . 84
SECTION 1403. Exercise of Option . . . . . . . . . . . . . . . . . . 84
SECTION 1404. When Securities Presented for Repayment Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1405. Securities Repaid in Part . . . . . . . . . . . . . . . 86
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1502. Defeasance and Discharge . . . . . . . . . . . . . . . 87
SECTION 1503. Covenant Defeasance . . . . . . . . . . . . . . . . . . 87
SECTION 1504. Conditions to Defeasance or Covenant Defeasance . . . . 88
SECTION 1505. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . 90
SECTION 1506. Reinstatement . . . . . . . . . . . . . . . . . . . . . 91
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called . . . . . . . 91
SECTION 1602. Call, Notice and Place of Meetings . . . . . . . . . . 91
SECTION 1603. Persons Entitled to Vote at Meetings . . . . . . . . . 92
SECTION 1604. Quorum; Action . . . . . . . . . . . . . . . . . . . . 92
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1606. Counting Votes and Recording Action of Meetings . . . . 95
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
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SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Exhibit A Forms of Certification. . . . . . . . . . . . . . . . A-1-1
Exhibit A-1 Form of Certificate to be given by person entitled
to receive bearer security or to obtain interest
payable prior to the exchange date. . . . . . . . . . A-1-1
Exhibit A-2 Form of certificate to be given by Euroclear and
Cedel S.A.. . . . . . . . . . . . . . . . . . . . . . A-2-1
INDENTURE, dated as of May 15, 1995, among Viacom Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 1515
Broadway, New York, New York 10036, Viacom International Inc., a
corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Guarantor"), having its principal office at
1515 Broadway, New York, New York 10036, and The First National Bank of
Boston, a national banking association duly organized and existing under
the laws of the United States of America, trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as provided in
this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such
provisions.
RECITAL OF THE GUARANTOR
The Guarantor desires with respect to the Securities of certain
series issued hereunder to make the Guarantees provided for herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or
of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
2
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular
and, pursuant to Section 301, any such item may, with respect to any
particular series of Securities, be amended, or modified or specified
as being inapplicable;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(3) except as otherwise herein expressly provided, all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America from time to time; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in Article Three are defined in
that Article.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"Additional Amounts" has the meaning specified in Section 1007.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control", when used with respect to any specified Person,
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
3
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Board of Directors", when used with reference to the Company or
the Guarantor, means either the board of directors, or any duly authorized
committee of that board, of the Company or the Guarantor, as the case may
be.
"Board Resolution", when used with reference to the Company or
the Guarantor, means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
that Place of Payment or other location are authorized or obligated by law
or executive order to close.
"Capitalized Lease" means any obligation of a Person to pay rent
or other amounts incurred with respect to real property or equipment
acquired or leased by such Person and used in its business that is required
to be recorded as a capital lease in accordance with generally accepted
accounting principles consistently applied as in effect from time to time.
"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.
4
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of any supplemental indenture or
Officer's Certificate, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by one Officer of the Company, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 150 Royall Street, Mail Stop 45-02-15, Canton,
Massachusetts 02021, except that with respect to presentation of Securities
for payment or for registration of transfer or exchange, such term shall
mean the office or agency of the Trustee at which, at any particular time,
its corporate agency business shall be conducted.
"corporation" means a corporation, association, company,
joint-stock company, limited liability company, or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Default" means any event or condition which is, or after notice
or passage of time or both would be, an Event of Default.
"Default Amount" has the meaning specified in Section 502.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"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.
5
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any
Securities pursuant to Section 301, a New York Clearing House bank,
designated pursuant to Section 301.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantees set forth in Section 1301.
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of any supplemental
indenture or Officer's Certificate, and thereafter "Guarantor" shall mean
such successor Person.
"Guarantor Obligations" shall have the meaning provided in
Section 1301.
"Guarantor Request" or "Guarantor Order" means a written request
or order signed in the name of the Guarantor by one Officer of the
Guarantor, and delivered to the Trustee.
"Holder", when used with respect to any Security, means, in the
case of a Registered Security, the Person in whose name the Security is
registered in the Security Register, and in the case of a Bearer Security,
the bearer thereof and, when used with respect to any coupon, means the
bearer thereof.
"Indebtedness" of any Person means, without duplication, (i) any
obligation of such Person for money borrowed, (ii) any obligation of such
Person evidenced by bonds, debentures, notes, or other similar instruments,
(iii) any reimbursement obligation of such Person in respect of letters of
credit or other similar instruments which support financial obligations
which would otherwise become Indebtedness, (iv) any obligation of such
Person under Capitalized Leases (other than in respect of
(x) telecommunications equipment including, without limitation, satellite
transponders, and (y) theme park equipment and attractions) and (v) any
obligation of any third party to the extent secured by a Lien on the assets
of such Person; provided, however, that "Indebtedness" of such Person shall
not include any obligation of such Person (i) to any Subsidiary of such
Person or to any Person with respect to which such Person is a Subsidiary
or (ii) specifically with respect to the production, distribution or
acquisition of motion pictures or other programming rights, talent or
publishing rights. When used with respect to the Company, the term
"Indebtedness" also includes any obligation of the Guarantor specified in
clauses (i) through (v) above to the extent that said Indebtedness is
guaranteed by the Company.
6
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of
Securities established as contemplated by Section 301; provided, however,
that, if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted
by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original
Issue Discount Security.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means any pledge, mortgage, lien, encumbrance or other
security interest.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder or otherwise.
"Notice of Default" shall have the meaning provided in
Section 501.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Secretary or
the Controller of the Company or the Guarantor, as the case may be.
7
"Officer's Certificate" means a certificate signed by any Officer
of the Company or the Guarantor, as the case may be, in his or her capacity
as such Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be General Counsel for the Company or the Guarantor, as the case may be,
and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to Securities or any series
of any Securities, means, as of the date of determination, all Securities
or all Securities of such series, as the case may be, theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or the Guarantor) in trust or
set aside and segregated in trust by the Company or the Guarantor (if
the Company or the Guarantor, as the case may be, shall act as a
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) to the extent provided in Article Fifteen,
(x) Securities with respect to which the Company has effected
defeasance pursuant to Section 1502 and (y) solely for the limited
purpose set forth in Section 1503, Securities with respect to which
the Company has effected covenant defeasance pursuant to such
Section 1503; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
8
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.
"Paying Agent" means any Person (including the Company or the
Guarantor acting as Paying Agent) authorized by the Company to pay the
principal of (premium, if any, on) and interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for
determining the rate or rates of interest thereon, if any, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity.
9
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places (which, in the case of Euro
Securities, shall be outside the United States) where the principal of (and
premium, if any, on) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"possessions" of the United States include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and Northern Mariana
Islands.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"Principal Property" means any parcel of real property and
related fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the
Company, the Guarantor or any wholly owned Subsidiary of the Company and
located in the United States, the aggregate book value of which on the date
of determination exceeds $500 million, other than any such real property
and related fixtures or improvements, which, as determined in good faith by
the Board of Directors of the Company, is not of material importance to the
total business conducted by the Company and its Subsidiaries, taken as a
whole.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" has the meaning specified in Section 1402.
"Repayment Price" has the meaning specified in Section 1402.
10
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any Vice
President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions similar
to those performed by any of the above-designated officers, and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means a corporation all of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more of its Subsidiaries, or by the Company and one or
more of its Subsidiaries, which is incorporated under the laws of a State
of the United States, and which owns a Principal Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by
the Trustee pursuant to Section 307.
"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
11
limitation, a partnership or joint venture, in which such Person, one or
more Subsidiaries thereof, or such Person and one or more Subsidiaries
thereof, directly or indirectly, at the date of determination thereof, has
at least majority ownership interest entitled to vote in the election of
directors, managers or trustees thereof (or other Persons performing
similar functions).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, provided, however, that, if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
"U.S. Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent global Securities, the Person designated as U.S. Depositary by
the Company pursuant to Section 301, which must be a 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
12
such U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by such custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company, the
Guarantor or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title
"Vice President".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company or the Guarantor to the Trustee
to take any action under any provision of this Indenture (other than in
connection with the delivery of any Security offered in a Periodic Offering
to the Trustee for authentication pursuant to Section 303), the Company or
the Guarantor, as the case may be, shall furnish to the Trustee an
Officer's Certificate 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;
13
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company or the Guarantor, as the case may be,
stating that the information with respect to such factual matters is in the
possession of the 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
14
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Sixteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company or the Guarantor or to all of them. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent
or proxy, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1606.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(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
15
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount
and serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or the
Guarantor, as the case may be, may, at its option, by or pursuant to Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company or the Guarantor, as the case
may be, shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than
the date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security 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
16
class postage prepaid, in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration; or
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or the Guarantor, as the case may be,
addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, to the attention of its
Secretary, or at any other address previously furnished in writing to
the Trustee by the Company or the Guarantor, as the case may be.
SECTION 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where
this Indenture provides for notice to Holders of Registered Securities of
any event by the Company, the Guarantor or the Trustee:
(1) such notice shall be sufficiently given to Holders of
Registered Securities (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at the address of such Holder as it
appears in the Security Register, not earlier than the earliest date,
and not later than the latest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such
Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and the second
such publication to be not later than the latest date, prescribed for
the giving of such notice.
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.
17
Any notice mailed to a Holder of Registered Securities in the
manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice.
Any notice to Holders of Bearer Securities shall be deemed to have been
given on the date of the first such publication referred to in (2) above.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
------------------------
Any request, demand, authorization, direction, notice, consent,
proxy or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
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.
18
SECTION 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company or
the Guarantor shall bind its respective successors and assigns, whether so
expressed or not.
SECTION 111. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities, the
Guarantees or the coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, the Guarantees or
the coupons, express or implied, shall give to any Person, other than the
parties hereto, any Authenticating Agent, any Paying Agent, any Security
Registrar and their successors hereunder and the Holders of Securities, the
Guarantees or coupons, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 113. Governing Law.
-------------
This Indenture, the Securities, the coupons and, if issued, the
Guarantees shall be governed by and construed in accordance with the laws
of the State of New York.
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.
19
SECTION 115. Submission to Jurisdiction; Appointment of Agent
------------------------------------------------
for Service.
- -----------
The Company and, if any Guarantees are issued, the Guarantor each
hereby irrevocably submit to the non-exclusive jurisdiction of any New York
state or federal court sitting in The City of New York in any action or
proceeding arising out of or relating to the Indenture, the Securities of
any series or, with respect to the Guarantor, the Guarantees, and the
Company and the Guarantor hereby irrevocably agree that all claims in
respect of such action or proceeding may be heard and determined in such
New York state or federal court. The Company and the Guarantor hereby
irrevocably waive, to the fullest extent they may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. The Company and the Guarantor agree that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law.
So long as any Securities remain Outstanding, the Company, and so
long as any Guarantees remain Outstanding, the Guarantor, will at all times
have its principal executive office in the Borough of Manhattan, The City
of New York, or an authorized agent in the Borough of Manhattan, The City
of New York, where or upon whom process may be served in any legal action
or proceeding arising out of or relating to the Indenture, the Securities
of any series or, with respect to the Guarantor, the Guarantees. Service
of process upon such agent and written notice of such service mailed or
delivered to the Company or the Guarantor shall to the extent permitted by
law be deemed in every respect effective service of process upon the
Company or the Guarantor, as the case may be, in any such legal action or
proceeding.
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
20
with the rules of any securities exchange or applicable tax law or as may,
consistently herewith, be determined by the officers executing such
Securities, including the Guarantees, if any, to be endorsed thereon, or
coupons, as evidenced by their execution of the Securities. If the forms
of Securities, including the Guarantees, if any, to be endorsed thereon, or
coupons of any series are established by action taken pursuant to a Board
Resolution of the Company or the Guarantor, as the case may be, a copy of
an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be,
and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of
such Securities or coupons. Any portion of the text of any Security may be
set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities, including the Guarantees, if any, to
be endorsed thereon, and coupons, if any, shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, Guarantees or
coupons, as evidenced by their execution of such Securities, Guarantees or
coupons.
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
21
SECTION 203. Securities in Global Form.
-------------------------
If Securities of or within a series are issuable in global form,
as specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any such
Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee or
the Security Registrar in such manner and upon instructions given by such
Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee or the Security Registrar shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or Section 304 has been,
or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee or the Security Registrar the Security in global form together with
written instructions (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) with regard to the reduction in
the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
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.
22
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
There shall be established in or pursuant to one or more Board
Resolutions of the Company or pursuant to authority granted by one or more
Board Resolutions of the Company and, subject to Section 303, set forth in,
or determined in the manner provided in, an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1405 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the
Securities of the series is payable;
(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
23
outside the United States), any Registered Securities of the series
may be surrendered for registration of transfer, Securities of the
series may be surrendered for exchange and, if different than the
location specified in Section 105, the place or places where notices
or demands to or upon the Company or, if applicable, the Guarantor in
respect of the Securities of the series and this Indenture may be
served;
(6) the period or periods within which, the price or prices at
which and the other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable, and if other than the denomination of
$5,000, the denomination or denominations in which any Bearer
Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion, or
the manner of calculation of such portion, of the principal amount of
any Securities of the series that shall be payable upon acceleration
of the Maturity thereof pursuant to Section 502, upon redemption of
the Securities of the series which are redeemable before their Stated
Maturity, upon surrender for repayment at the option of the Holder, or
which the Trustee shall be entitled to claim pursuant to Section 504;
(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
24
thereof, in a currency or currencies, including currency units, other
than that or those in which the Securities are denominated or stated
to be payable, the currency or currencies in which payment of the
principal of (and premium, if any, on) and interest on Securities of
such series as to which such election is made shall be payable, and
the period or periods within which and the terms and conditions upon
which such election may be made;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fifteen that shall be applicable to the
Securities of the series, and the obligations, if any, under this
Indenture to which the provisions of Section 1503 shall apply;
(16) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(17) any deletions from, modifications of, or additions to the
Events of Default or covenants of the Company or, if applicable, the
Guarantor with respect to Securities of the series, whether or not
such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form with or without coupons
and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, whether Registered Securities of the series
may be exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered 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;
25
(20) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304
and the extent to which, or the manner in which, any interest payable
on a permanent global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 307;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities
to be authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities
of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect
of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(24) whether Securities of or within the series are to be
guaranteed by the Guarantor and any modification of the terms of the
Guarantees as set forth in Article 13 hereof; and
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture) including,
without limitation, the terms, if any, of any exchangeability or
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
26
Securities, as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth, or determined in the manner provided, in the
Officer's Certificate referred to above or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued
at the same time, and, unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms or the manner of determining the terms
of the series.
With respect to Securities of a series offered in a Periodic
Offering, the Board Resolution (or action taken pursuant thereto),
Officer's Certificate or supplemental indenture referred to above may
provide general terms or parameters for Securities of such series and
provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company in accordance with other procedures specified in
a Company Order as contemplated by the third paragraph of Section 303.
SECTION 302. Denominations.
-------------
Unless otherwise provided as contemplated by Section 301, with
respect to any series of Securities, any Registered Securities of a series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof and any Bearer Securities of a series, other than
Bearer Securities issued in global form (which may be of any denomination),
shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman of the Board or the Vice
Chairman of the Board, or its President, or one of its Executive Vice
Presidents or Vice Presidents, or by its Treasurer or one of its Assistant
Treasurers and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or
coupons may be the manual or facsimile signature of such authorized officer
and may be imprinted or otherwise reproduced on the Securities.
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
27
the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, together with any coupons appertaining thereto, executed by the
Company and (if Securities of such series were specified as contemplated by
Section 301 to be guaranteed by the Guarantor) having endorsed thereon
Guarantees duly executed by the Guarantor, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Securities; provided,
however, that, in the case of Securities offered in a Periodic Offering,
the Trustee shall authenticate and deliver such Securities from time to
time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions
from the Company or its duly authorized agents, promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series; provided further, however,
that, in connection with its original issuance, no Euro Security shall be
mailed or otherwise delivered to any location in the United States; and
provided further, however, that a Euro Security (other than a Security in
temporary global form) may be delivered in connection with its original
issuance only if the Person entitled to physical delivery of such Euro
Security (which, in the case of a Euro Security to be received in exchange
for all or a portion of a Security in temporary global form, shall be the
account holder with Euro-clear or Cedel S.A. to whose account all or such
portion of such Security in temporary global form has been credited) shall
have furnished a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other form as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the Exchange Date. If
any Security shall be represented by a permanent global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
physical delivery in connection with the original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled. If not all the Securities of any
series are to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such
Company Order may set forth the procedures acceptable to the Trustee for
the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, maturity date, date of
issuance and date from which interest shall accrue.
If the forms or terms of the Securities of the series and any
related coupons, or the form of any Guarantees endorsed thereon, have been
established in or pursuant to one or more Board Resolutions of the Company
or the Guarantor, as the case may be, as
28
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive, and (subject
to TIA Sections 315(a) through 315(d)) shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any such
Guarantees to be endorsed thereon and any coupons have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been,
or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of
this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(c) that such Securities, together with any Guarantees endorsed
thereon and any coupons appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and
the Guarantor, respectively, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities, such
Guarantees and any coupons.
Notwithstanding the provisions of Section 301 and of the two
preceding paragraphs, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the
Officer's Certificate otherwise required pursuant to Section 301 or the
Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraphs at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series
to be issued.
The Trustee shall not be required to authenticate and deliver any
such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of
any of such Securities or as to the authorization by the Guarantor of any
Guarantee endorsed thereon, the form and terms
29
thereof and the legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and the other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable, in
connection with the first authentication of Securities of such series.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued except
as otherwise provided pursuant to Section 301 in connection with the
Securities of any series.
No Security, no Guarantee endorsed thereon and no coupon
appertaining thereto shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein, duly executed
by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. The delivery
of any Security by the Trustee after the authentication thereof hereunder
shall 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.
30
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company maintained
pursuant to Section 1002 in a Place of Payment for such series for the
purpose of exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of
definitive Securities of the same series and of like tenor of authorized
denominations, having, if applicable, endorsed thereon Guarantees duly
executed by the Guarantor; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and provided further, however, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance 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
31
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
or Cedel S.A., as the case may be, after the Exchange Date of a certificate
in the form set forth in Exhibit A-1 to this Indenture (or in such other
form as may be established pursuant to Section 301), signed by the account
holder and dated no earlier than 15 days prior to the date on which Euro-
clear or Cedel S.A., as the case may be, furnishes to the Common Depositary
in accordance with the preceding paragraph a certificate in the form set
forth in Exhibit A-2 to this Indenture (or such other form as may be
established pursuant to Section 301) that relates to the interest to be
exchanged for definitive Securities. Copies of the certificate in the form
set forth in Exhibit A-1 to this Indenture (or such other form as may be
established pursuant to Section 301) shall be available from the offices of
Euro-clear and Cedel S.A., the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event
that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or Cedel S.A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable
on a temporary global Security on any Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date shall be
payable to Euro-clear and Cedel S.A. on such Interest Payment Date upon
delivery by Euro-clear and Cedel S.A. to the
32
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 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
33
of a like aggregate principal amount and tenor, having, if applicable,
endorsed thereon Guarantees duly executed by the Guarantor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making
the exchange is entitled to receive, having, if applicable, endorsed
thereon Guarantees duly executed by the Guarantor. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Registered Securities, including Registered Securities
received in exchange for Bearer Securities, may not be exchanged for Bearer
Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth, or
determined in the manner provided, in the applicable Officer's Certificate,
or in any indenture supplemental hereto, delivered as contemplated by
Section 301, at the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons (except as provided below) and
with all matured coupons in default appertaining thereto. If the Holder of
a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save each of
them, the Guarantor and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such office or agency in a permitted
exchange for a Registered Security of the same series and like tenor after
the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable
34
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 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
35
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 duly endorsed, or be
accompanied by a written instrument of transfer, in form satisfactory to
the Company and the Security Registrar or any transfer agent, duly executed
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1405
not involving any transfer.
In the event of any redemption in part, the Company shall not be
required (i) to issue, register the transfer of or exchange any Security of
any series during the period beginning at the opening of business 15 days
before the selection of Securities of like tenor and of the series of which
such Security is a part for redemption, and ending at the close of business
on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and
(B) if Securities of the series are issuable as Bearer Securities, the day
of the first publication of the relevant notice of
36
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 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.
37
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 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
38
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
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).
39
(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 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).
40
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Fourteen for repayment at the option of Holders except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except that, if
the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such
tender or repayment until the close of business on the tenth day before
such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Optional Extension of Stated Maturity.
-------------------------------------
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such
Section 301). The Stated Maturity of any Security of such series may be
extended at the option of the Company for the period or periods specified
on the face of such Security (each an "Extension Period") up to but not
beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any
Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to the Stated Maturity of such Security in effect prior
to the exercise of such option (the "Original Stated Maturity"). If the
Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension
Notice") indicating (i) the election of the Company to extend the Stated
Maturity, (ii) the new Stated Maturity, (iii) the interest rate applicable
to the Extension Period and (iv) the provisions, if any, for redemption
during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Security will have the same terms as
prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish
a higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable.
41
All Securities with respect to which the Stated Maturity is extended will
bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on
the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment
on the Original Stated Maturity once the Company has extended the Maturity
thereof, the Holder must follow the procedures set forth in Article
Fourteen for repayment at the option of Holders, except that the period for
delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to the Original Stated Maturity and except that, if the
Holder has tendered any Security for repayment pursuant to an Extension
Notice, the Holder may by written notice to the Trustee revoke such tender
for repayment until the close of business on the tenth day before the
Original Stated Maturity.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to the due presentment of a Registered Security for
registration of transfer, the Company, the Guarantor (if a Guarantee is
endorsed on such Registered Security), the Trustee and any agent of the
Company, the Guarantor (if a Guarantee is endorsed on such Registered
Security) or the Trustee may treat the Person in whose name such Registered
Security is registered as the absolute owner of such Registered Security
for the purpose of receiving payment of principal of (and premium, if any,
on) and (subject to Sections 305 and 307) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Guarantor (if a Guarantee is endorsed on such
Registered Security), the Trustee or any agent of the Company, the
Guarantor (if a Guarantee is endorsed on such Registered Security) or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Guarantor (if a Guarantee is
endorsed on such Bearer Security), the Trustee and any agent of the
Company, the Guarantor (if a Guarantee is endorsed on such Bearer Security)
or the Trustee may treat the bearer of any Bearer Security and the bearer
of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon be
overdue, and, to the extent permitted by law, none of the Company, the
Guarantor (if a Guarantee is endorsed on such Bearer Security), the Trustee
or any agent of the Company, the Guarantor (if a Guarantee is endorsed on
such Bearer Security) or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Guarantor, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in
42
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 with
respect to any Securities, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
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 when
44
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306,
(iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv) Securities
and coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company or
the Guarantor, as the case may be, and thereafter repaid to the
Company or the Guarantor, as the case may be, or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose, solely for the benefit
of the Holders 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;
45
(2) the Company has irrevocably paid or caused to be irrevocably
paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee under Section 606 and to any Authenticating Agent under Section
611 and, if money shall have been deposited with the Trustee pursuant to
clause (1)(B) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive any
termination of this Indenture.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company or the Guarantor acting
as a Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal of (and premium, if any, on) and interest on the
Securities for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
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; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of a series of
Securities other than that series) and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 33 1/3% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company then has
outstanding Indebtedness in excess of $100,000,000 in the aggregate
and, if not already matured at its final maturity in accordance with
its terms, such Indebtedness shall have been accelerated and remains
unpaid; or
(5) the entry by a court having jurisdiction in the premises of
a money judgment in an amount in excess of $250,000,000 against the
Company which has become final and not subject to appeal, and the
continuance of any such judgment unstayed, in effect and unpaid for a
period of 90 days; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or, if
Guarantees are issued, the Guarantor in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or, if Guarantees are issued, the
Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or, if Guarantees are
issued, the Guarantor under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or, if
Guarantees are issued, the Guarantor or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company or, if Guarantees are
issued, the Guarantor of a voluntary case or proceeding under any
applicable federal or state
47
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or, if Guarantees are issued, the Guarantor in
an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or, if Guarantees are issued, the Guarantor or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due or the taking
of corporate action by the Company or, if Guarantees are issued, the
Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series
at the time Outstanding (other than an Event of Default specified in
Section 501(6) or (7)) occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 33 1/3% in principal amount of the
Outstanding Securities of that series may, and the Trustee at the request
of such Holders shall, declare immediately due and payable, by a notice in
writing to the Company and, if applicable, the Guarantor (and to the
Trustee if given by Holders) the unpaid principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in the terms of
that series) of (and premium, if any) and accrued interest in respect of
each Security then Outstanding in that series (the "Default Amount"). Upon
any such declaration, the Default Amount shall become immediately due and
payable on all Outstanding Securities of that series. Notwithstanding any
other provision of Section 502, if an Event of Default specified in
Section 501(6) or (7) occurs then, the Default Amount on the Securities
then Outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to
48
the Company, the Trustee and, if applicable, the Guarantor may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Securities of that series
and any related coupons,
(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than by
such declaration of acceleration, and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (or premium, if
any, on) or interest on Securities of that series which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities of any series
because an Event of Default specified in Section 501(4) shall have occurred
and be continuing, such declaration of acceleration shall be automatically
annulled if the Indebtedness that is the subject of such Event of Default
has been discharged or the holders thereof have rescinded any declaration
of acceleration in respect of such Indebtedness or waived any default
thereunder permitting such an acceleration, and written notice of such
discharge, rescission or waiver, as the case may be, shall have been given
to the Trustee by the Company or the Guarantor and by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders, within 30
days after such declaration of acceleration in respect of the Securities of
that series and no other Event of Default has occurred during such 30-day
period which has not been cured or waived during such period.
49
SECTION 503. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee.
- ----------------------
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security of any series or any related coupon when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at the Maturity
thereof,
then the Company will, upon demand of the Trustee, pay to it (such demand
and payment in the case of Euro Securities to occur only outside the United
States), for the benefit of the Holders of such Securities and any coupons
appertaining thereto, the whole amount then due and payable on such
Securities and coupons of that series for principal (and premium, if any)
and interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company, the Guarantor (if any related
Guarantees are issued) or any other obligor upon such Securities of that
series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor
(if any related Guarantees are issued) or any other obligor upon such
Securities of that series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of that series and any coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
50
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 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.
51
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the
Securities or any coupon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities or coupons, or both, as the case may be (such presentation, in
the case of Euro Securities or coupons, to occur only outside the United
States), and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee hereunder,
-----
including under Section 606;
Second: To the payment (such payment, in the case of Euro
------
Securities, to occur only outside the United States) of the amounts
then due and unpaid for principal of (and premium, if any, on) and any
interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
-----
thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or of any related coupon
shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
52
(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
proceeding, the Company, the Guarantor, the Trustee and the Holders of
Securities and
53
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
55
any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities
of such series and any related coupons; and provided further that, in the
case of any Default or breach of the character specified in Section 501(3)
with respect to Securities of such series, no such notice to Holders shall
be given until at least 30 days after the occurrence thereof.
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;
56
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall in good
faith determine to make such further inquiry or investigation, it
shall be entitled upon reasonable notice and at reasonable times
during 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
57
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company or the Guarantor,
as the case may be.
SECTION 606. Compensation, 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.
58
SECTION 607. Corporate Trustee Required; Eligibility
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then, for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company and, if applicable, the Guarantor. If the instrument of acceptance
by a successor Trustee required by Section 609 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by (i) the Company, by a Board Resolution
delivered to the Trustee, provided that, contemporaneously therewith (x)
the Company immediately appoints a successor Trustee with respect to the
Securities of such series meeting the requirements of Section 607 hereof
and (y) the terms of Section 609 hereof are complied with in respect of
such appointment (the Trustee being removed hereby agreeing to execute the
instrument contemplated by Section 609(b) hereof, if applicable, under such
circumstances) and provided further that, no Default with respect to such
Securities shall have occurred and then be continuing at such time, or
(ii) Act of the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series delivered to the Trustee, the
Company and, if applicable, the Guarantor.
59
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or the
Guarantor or by any Holder of a Security who for at least six months
has been a bona fide Holder of a Security of the series as to which
the Trustee has a conflicting interest, or
(2) the Trustee shall cease to be eligible under Section 607
hereof and shall fail to resign after written request therefor by the
Company, the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to the Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months (and, in the case of Section 608(d)(1)
above, who is a Holder of a Security of the series as to which the Trustee
has a conflicting interest) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Securities and the appointment
of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 609. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 609,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities of that series and accepted appointment in the manner required
by Section 609, any Holder of a Security who has been a bona fide Holder of
a Security of such series for at least
60
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series to the Holders of Securities of such series in the manner
provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company, the Guarantor and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the Guarantor, if applicable, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered
61
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.
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
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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.
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
63
written notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, in the
manner provided for in Section 106. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON, as
Trustee
By
--------------------------------------
as Authenticating Agent
By
--------------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint in accordance
with this Section an Authenticating Agent (which, if so requested by the
Company, shall be an Affiliate of the Company) having an office in a Place
of Payment designated by the Company with respect to such series of
Securities, provided that the terms and conditions of such appointment are
acceptable to the Trustee.
64
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY
AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company, the Guarantor and the Trustee that none
of the Company, the Guarantor or the Trustee or any agent of any of them
shall be held accountable by reason of the disclosure of any information as
to the names and addresses of the Holders of Securities in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the
May 15 occurring after the initial issuance of Securities hereunder, the
Trustee shall transmit by mail to the Holders of Securities of any series
with respect to which it acts as Trustee, in the manner and to the extent
provided in TIA Section 313(c), and to the Company and the Guarantor, a
brief report dated as of such May 15 which satisfies the requirements of
TIA Section 313(a).
SECTION 703. Reports by Company and the Guarantor.
------------------------------------
The Company and, so long as any Securities in respect of which
Guarantees have been issued are Outstanding, the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or
the Guarantor, as the case may be, is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company or the Guarantor, as the case
may be, may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or
the Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of such Sections,
then the Company or the Guarantor, as the case may be, shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of
65
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations; and
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company and the Guarantor with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations.
The Trustee shall transmit, within 30 days after the filing
thereof with the Trustee, to the Holders of Securities, in the manner and
to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company or
the Guarantor, as the case may be, pursuant to paragraphs (a) and (b) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
[Intentionally Omitted]
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of all or any series of Securities and any
related coupons (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or the
Guarantor; or
66
(2) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(3) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of
(or premium, if any, on) or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(4) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by a Board
67
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture which
affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security of each such series affected
thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, or the terms of any
sinking fund or analogous payment with respect to, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof or repayment thereof
at the option of the Holder, or change any obligation of the Company
to pay Additional Amounts contemplated by Section 1007 (except as
permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security or Indexed Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or upon the redemption thereof or the
amount thereof provable in bankruptcy pursuant to Section 504 or
change the coin or currency in which any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date, or, in the case of repayment at the option of the
Holder, on or after the Repayment Date), or modify the provisions of
this Indenture with respect to the mandatory redemption of Securities
or repayment of the Securities at the option of the Holder in a manner
adverse to any Holder of any Securities or any coupons appertaining
thereto, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section or Sections 513
and 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso,
in accordance with the requirements of Sections 609(b) and 901(7), or
68
(4) reduce the terms and conditions of any obligations of the
Guarantor in respect of the due and punctual payment of the principal
thereof and premium, if any, and interest, if any, thereon, any
Additional Amounts payable under Section 1007 in respect thereof or
any sinking fund or analogous payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
69
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee, the Company and, if applicable,
the Guarantor, to any such supplemental indenture may be prepared and
executed by the Company, having, if applicable, Guarantees endorsed thereon
and executed by the Guarantor, and authenticated and delivered (which
delivery, in the case of Euro Securities, shall occur only outside the
United States) by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
------------------------------------------
Interest.
- --------
The Company covenants and agrees for the benefit of the Holders
of each series of Securities and any related coupons that it will duly and
punctually pay, in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series), the principal of (and premium, if any, on) and
any interest on the Securities of that series in accordance with the terms
of such Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of
the respective coupons for such interest installments.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such
series an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served, which agency initially shall be The First
National Bank of Boston at 150 Royall Street, Mail Stop 45-02-15, Canton,
Massachusetts 02021, Attention: Corporate Trust Administration. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office
70
or agency where any Registered Securities of that series may be presented
or surrendered for payment, where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise);
(B) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1007);
provided, however, that, if the Securities of that series are listed on The
International Stock Exchange of the United Kingdom and the Republic of
Ireland, Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that series
in London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside
the United States, an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt
written notice to the Trustee and give prompt notice to the Holders as
provided in Section 106 of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof,
such presentations and surrenders of Securities of that series may be made
and notices and demands may be made or served at the Corporate Trust Office
of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Bearer Securities of that
series pursuant to Section 1007) at any Paying Agent for such series
located outside the United States, and the Company hereby appoints the same
as its agent to receive all such respective presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, if any, or
interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a financial
institution located in the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of (and premium, if any, on) and any interest on any Bearer
Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1007) shall be made at the office of the
71
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 a Paying
Agent with respect to the Securities of any series and any related coupons,
it will, on or before each due date of the principal of (and premium, if
any, on) or any interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
(in the currency, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series)) sufficient to pay the principal (and premium, if any) or any
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or any interest on
any Securities of that series, deposit with a Paying Agent a sum (in the
currency, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series))
sufficient to pay the principal (and premium, if any) or any interest so
becoming due, such sum of money to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
72
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 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
73
trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
-------------------
Subject to any supplemental indentures hereto or Officer's
Certificates creating any series, the Company and, so long as any
Securities in respect of which Guarantees have been issued are Outstanding,
the Guarantor will do or cause to be done all things necessary to preserve
and keep in full force and effect their respective corporate existence,
rights (charter and statutory) and franchises; provided, however, that
neither the Company nor the Guarantor shall be required to preserve any
such right or franchise if its Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of its business,
and that the loss thereof is not disadvantageous in any material respect to
the Holders of the Securities or any coupons appertaining thereto.
SECTION 1005. Maintenance of Principal Properties.
-----------------------------------
The Company will cause all Principal Properties used or useful in
the conduct of its business or the business of the Guarantor or Restricted
Subsidiary of the Company to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
maintenance of any of such properties or prevent or restrict the sale,
abandonment or other disposition of any of such properties if such action
is, in the judgment of the Company, desirable in the conduct of the
business of the Company and its Subsidiaries as a whole, and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material
taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary of the Company or upon the income, profits or
property of the Company or any Subsidiary of the Company, and (b) all
material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of the Company or any
Subsidiary of the Company;
74
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 Securities of a series provide for the payment of additional
amounts to any Holder who is not a United States person in respect of any
tax, assessment or governmental charge ("Additional Amounts"), the Company
will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be so provided by
Section 301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of a
Security of a series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not
bear interest prior to Maturity, the first day on which a payment of
principal (and premium, if any) is made), and at least 10 days prior to
each date of payment of principal (and premium, if any) or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officer's Certificate, the Company will furnish the Trustee
and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officer's Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any, on) or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related coupons who are
not United States Persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officer's
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall
not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled to (i) assume that no such withholding or
deduction is required with respect to any payment of principal (and
premium, if any) or any interest with respect to any Securities of a series
or related coupons until it shall have received a certificate advising
otherwise and (ii) make all
75
payments of principal (and premium, if any) and interest with respect to
the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officer's Certificate furnished
pursuant to this Section or in the event the Trustee shall not withhold or
deduct any sums as a result of the non-receipt of an Officer's Certificate
pursuant to this Section.
SECTION 1008. Compliance Certificate.
----------------------
(a) The Company and, so long as any Securities in respect of
Guarantees have been issued are Outstanding, the Guarantor each shall
deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company or the Guarantor, as the case may be, a brief certificate
from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's or
the Guarantor's, as the case may be, compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1008(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) The Company will, so long as any of the Securities of any
series are Outstanding, deliver to the Trustee, as promptly as practicable
upon any officer listed in (a) above becoming aware of any Default, Event
of Default or default in the performance of any covenant, agreement or
condition contained in this Indenture, an Officer's Certificate specifying
such Default, Event of Default, default or event of default and what action
the Company is taking or proposes to take with respect thereto and the
status thereof.
SECTION 1009. Waiver of Certain Covenants.
---------------------------
With respect to the Securities of any series, the Company and the
Guarantor may omit in any particular instance to comply with any covenant
or condition specified pursuant to Section 301 as being subject to this
Section 1009, if, before the time for such compliance, the Holders of at
least a majority in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
Guarantor and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
76
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.
77
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
78
maturing subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
unless security or indemnity satisfactory to the Company, the
Guarantor, if applicable, the Trustee and any Paying Agent is
furnished, and
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on such Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on
which such exchanges may be made.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
(together with accrued interest, if any, to the Redemption Date), and from
and after such date (unless the Company and the Guarantor shall default in
the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest and the coupons for such interest appertaining
to any Bearer Securities so 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
79
Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such
interest; and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company,
the Guarantor and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company,
the Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor
and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, of any 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
80
surrendered with, if applicable, Guarantees endorsed thereon duly executed
by the Guarantor. If a temporary global Security or permanent global
Security is so surrendered, such new Security so issued shall be a new
temporary global Security or permanent global Security, respectively.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
------------------------------------------
Securities.
- ----------
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series
in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of such series (other than any previously called for
redemption or presented for repayment at the option of the Holder)
theretofore purchased or otherwise acquired by the Company, together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) receive credit for the principal amount of
previously Outstanding Securities of such series which have been previously
purchased or otherwise acquired by the Company and delivered to the Trustee
by the Company or for Outstanding Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, in each case in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of the
same series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series;
81
provided, however, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash, in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202
(which Securities will, if not previously delivered, accompany such
certificate), the basis for such credit and that such Securities have not
been previously so credited, and whether the Company intends to exercise
its right to make a permitted optional sinking fund payment with respect to
such series. Not more than 60 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Guarantees.
----------
If Securities of or within a series are specified, as
contemplated by Section 301, to be guaranteed by the Guarantor, then the
Guarantor hereby fully and unconditionally guarantees to each Holder of any
such Security which is authenticated and delivered by the Trustee and to
each Holder of any coupon appertaining to any such Security, and to the
Trustee on behalf of each such Holder, the due and punctual payment of the
principal of (and premium, if any, on) and interest (including, in case of
default, interest on principal and, to the extent permitted by applicable
law, on overdue interest and including any additional interest required to
be paid according to the terms of any such Security or any coupon
appertaining thereto), if any, on each such Security, and the due and
punctual payment of any sinking fund payment (or analogous obligation), if
any, provided for with respect to any
82
such Security, when and as the same shall become due and payable, whether
at Stated Maturity, upon redemption, upon acceleration, upon tender for
repayment at the option of any Holder or otherwise, according to the terms
thereof and of this Indenture, including, without limitation, the payment
of any Additional Amounts, if any, provided for with respect to any such
Security as described under Section 1007 hereof (the "Guarantor
Obligations"). In case of the failure of the Company or any successor
thereto punctually to pay any such principal, premium, interest or sinking
fund payment, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether
at Stated Maturity, upon redemption, upon declaration of acceleration, upon
tender for repayment at the option of any Holder or otherwise, as if such
payment were made by the Company.
The Guarantor hereby agrees that its Guarantor Obligations
hereunder shall be as if it were principal debtor and not merely surety and
shall be absolute and unconditional, irrespective of the identity of the
Company, the validity, regularity or enforceability of any such Security or
coupon appertaining thereto or this Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of any such Security
or coupon appertaining thereto with respect to any provisions thereof, the
recovery of any judgment against the Company or any action to enforce the
same, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantees will not be discharged except
by complete performance of its obligations contained in any such Security
or coupon appertaining thereto and in this Guarantee.
If the Trustee or the Holder of any Security or any coupon
appertaining thereto is required by any court or otherwise to return to the
Company or the Guarantor, or any custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official acting in relation to the
Company or the Guarantor, any amount paid to the Trustee or such Holder in
respect of a Security or any coupons appertaining thereto, the Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantor further agrees, to the fullest extent that it may
lawfully do so, that, as between the Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five hereof for
the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition extant under any applicable bankruptcy law preventing
such acceleration in respect of the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of
the Securities of a series (and of any coupons appertaining thereto)
against the Company in respect of any
83
amounts paid by the Guarantor on account of such Securities or any coupons
appertaining thereto or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any, on) and interest, if any, on all
Securities of such series shall have been indefeasibly paid in full.
SECTION 1302. Execution and Delivery of Guarantees.
------------------------------------
To evidence its Guarantees with respect to Securities of or
within any series that are specified, as contemplated by Section 301, to be
guaranteed by the Guarantor, the Guarantor hereby agrees to execute the
Guarantees, in a form established pursuant to Section 201, to be endorsed
on each Security of such series authenticated and delivered by the Trustee.
Each such Guarantee shall be executed on behalf of the Guarantor by its
Chairman of the Board, or its Vice Chairman of the Board, or its President,
or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these
officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of the
individuals who were the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the
Securities upon which such Guarantees are endorsed or did not hold such
offices at the date of such Securities.
The delivery of any Securities by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees endorsed thereon on behalf of the Guarantor. The Guarantor
hereby agrees that its Guarantees set forth in this Article shall remain in
full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee.
SECTION 1303. Limitation of Guarantor's Liability.
-----------------------------------
The Guarantor, and by its acceptance of a Security each Holder,
hereby confirms that it is the intention of all such parties that in no
event shall any Guarantor Obligations under the Guarantees constitute or
result in a fraudulent transfer or conveyance for purposes of, or result in
a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law. To effectuate the
foregoing intention, in the event that the Guarantor Obligations, if any,
in respect of the Securities of any series would, but for this sentence,
constitute or result in such a fraudulent transfer or conveyance or
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
84
fraudulent transfer or conveyance or violation under the applicable
fraudulent transfer or conveyance or similar law.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated
Maturity at the option of the Holders thereof shall be made in accordance
with the terms of such Securities and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance
with this Article.
SECTION 1402. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part
at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price (the "Repayment Price")
equal to the principal amount thereof, together with interest, if any,
thereon accrued to the repayment date specified in or pursuant to the terms
of such Securities (the "Repayment Date"). The Company covenants that on
or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company or the Guarantor is acting as a Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series) sufficient to pay the principal (or, if so provided by the
terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1403. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect
Repayment" form on the reverse of such Security duly completed by the
Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the
terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not
earlier than 45 days nor later than 30 days prior to the Repayment Date.
85
If less than the entire principal amount of such Security is to be repaid
in accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid,
must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Company.
SECTION 1404. When Securities Presented for Repayment Become Due
--------------------------------------------------
and Payable.
- -----------
If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the portions thereof, as the case may be, to be repaid
shall become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment Date
(unless the Company and, if applicable, the Guarantor shall default in the
payment of such Securities on such Repayment Date) such Securities shall,
if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender of any
such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior
to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of such coupons, and provided further that,
unless otherwise specified as contemplated by Section 301, in the case of
Registered Securities, installments of interest, if any, whose Stated
Maturity is on or prior to the Repayment Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor
as provided in Section 1402 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or
86
coupons may be waived by the Company, the Guarantor, if applicable, and the
Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made as provided in the preceding sentence, such Holder
shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section
301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1405. Securities Repaid in Part.
-------------------------
Upon surrender of any Registered Security which is to be repaid
in part only, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge and at
the expense of the Company, a new Registered Security or Securities of the
same series and of like tenor, of any authorized denomination specified by
the Holder, in an aggregate principal amount equal to and in exchange for
the portion of the principal of such Security so surrendered which is not
to be repaid, with, if applicable, Guarantees endorsed thereon duly
executed by the Guarantor. If a temporary global Security or permanent
global Security is so surrendered, such new Security so issued shall be a
new temporary global Security or a new permanent global Security,
respectively.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1501. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
If pursuant to Section 301 provision is made for either or both
of (a) defeasance of the Securities of a series under Section 1502 or
(b) covenant defeasance of the Securities of a series under Section 1503,
then the provisions of such Section 1502 or Section 1503, as the case may
be, together with Sections 1504, 1505 and 1506, shall be applicable to the
Securities 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
87
Section 1502 (if applicable) or Section 1503 (if applicable) be applied to
the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Fifteen.
SECTION 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series and
subject to Sections 1505 and 1506, the Company and the Guarantor shall be
deemed to have been discharged from their respective obligations with
respect to the Outstanding Securities of such series and any related
coupons on and after the date the conditions precedent set forth below are
satisfied but subject to satisfaction of the conditions subsequent set
forth below (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company and the Guarantor shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding
Securities of such series and any related coupons, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 1505 and the
other Sections of this Indenture referred to in (A) and (B) below, and to
have satisfied all their other obligations under such Securities and any
related coupons and this Indenture insofar as such Securities and any
related coupons are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Outstanding
Securities of such securities and any related coupons to receive, solely
from the trust fund described in Section 1504 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if
any, on) and interest on such Securities and any related coupons when such
payments are due, (B) the Company's obligations and, to the extent
applicable, the Guarantor's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment
of Additional Amounts, if any, on such Securities as contemplated by
Section 1007, and such obligations as shall be ancillary thereto, (C) the
rights, powers, trusts, duties, immunities and other provisions in respect
of the Trustee hereunder and (D) this Article Fifteen. Subject to
compliance with this Article Fifteen, the Company may exercise its option
under this Section 1502 notwithstanding the prior exercise of its option
under Section 1503 with respect to such Securities and any related coupons.
Following a defeasance, payment of the Securities of such series may not be
accelerated because of an Event of Default.
SECTION 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the
Company and the Guarantor shall each be released from their respective
obligations under any Section(s) of this Indenture applicable to 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
88
on and after the date the conditions precedent set forth below are
satisfied but subject to satisfaction of the conditions subsequent set
forth below (hereinafter, "covenant defeasance"), and such Securities and
any related coupons shall thereafter be deemed not to be "Outstanding" for
the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such
Sections, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to such Outstanding Securities of such series and any related
coupons, the Company and the Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth
in any such Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of reference in
any such Section to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default hereunder, but, except as specified above, the remainder of this
Indenture and such Securities and any related coupons shall be unaffected
thereby. Following a covenant defeasance, payment of the Securities of
such series may not be accelerated because of an Event of Default solely by
reference to such Sections specified above in this Section 1503.
SECTION 1504. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent or, as
specifically noted below, subsequent, to application of either Section 1502
or Section 1503 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Article Fifteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for the benefit of, and dedicated solely to, the
Holders of such Securities and any related coupons, (A) Dollars in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (or other qualifying trustee), to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) each installment of
principal of (and premium, if any, on) and interest on such
Outstanding Securities and any related coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal (and premium, if
any) or interest on the day on which such 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
89
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any related coupons on the due dates
thereof. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future
date in accordance with the terms of the Securities of such series and
Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing (A) on the date of such deposit or (B) insofar as
paragraphs (6) and (7) of Section 501 are concerned, at any time
during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of
the longest preference period applicable to the Company in respect of
such deposit (it being understood that the condition in this
clause (B) is a condition subsequent and shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in TIA Section 310(b) or otherwise for purposes of
the Trust Indenture Act with respect to any securities of the Company
or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company is
a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(6) In the case of an election under Section 1502, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution
of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding
Securities of such series and any related coupons will not recognize
income, gain or loss for federal 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.
90
(7) In the case of an election under Section 1503, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series
and any related coupons will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed in connection therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent and subsequent provided for in this Indenture
relating to either the defeasance under Section 1502 or the covenant
defeasance under Section 1503 (as the case may be) have been complied
with.
SECTION 1505. Deposited Money and Government Obligations to Be
------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 1505, the "Trustee") pursuant to Section 1504 in
respect of the Outstanding Securities of any series and any related coupons
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any related coupons and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company or the Guarantor acting as Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any related coupons of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 1504 or the principal
and interest received in respect thereof.
Anything in this Article Fifteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1504 which,
in the opinion of a nationally recognized firm of
91
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent defeasance or
covenant defeasance, as applicable, in accordance with this Article.
SECTION 1506. Reinstatement.
-------------
Anything herein to the contrary notwithstanding, if and to the
extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (i) cannot be applied by the Trustee or any Paying Agent in
accordance with Section 1505 because of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting
such application or (ii) are for any reason insufficient in amount, then
(x) the Company's and the Guarantor's obligations, if any, to pay principal
of and any premium and interest on the Securities of such series and any
related coupons shall be reinstated to the extent necessary to cover the
deficiency on any due date for payment and (y) in the case of a covenant
defeasance under Section 1503, the Company's and the Guarantor's
obligations, if any, under any Sections applicable to such Securities that
are determined pursuant to Section 301 to be subject to this provision
shall be reinstated unless and until all deficiencies on any due date for
payment are covered. In any case specified in clause (i), the Company's
interest in the deposited money and U.S. Government Obligations (and
proceeds thereof) shall be reinstated to the extent the Company's payment
obligations are reinstated.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any and all series may be
called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
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
92
such meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 33 1/3% in aggregate principal amount
of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1601, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication or mailing of the notice
of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Company and its counsel and any
representatives of the Guarantor and its counsel.
SECTION 1604. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if
any action is to be taken at such meeting with respect to a consent,
waiver, request, demand, notice, authorization, direction or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons holding or representing
such specified percentage in principal amount of the Outstanding Securities
of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series,
be dissolved. In any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such
93
adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1602(a), except that such notice need
be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which
shall constitute a quorum.
Except as limited by the proviso to the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid may be adopted by
the affirmative vote of the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to the first paragraph of
Section 902, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which this
Indenture expressly provides may be made, given or taken by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of not less than such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1604, if
any action is to be taken at a meeting of Holders of Securities of any
series with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such consent, waiver, request, demand,
notice, authorization, direction or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
94
SECTION 1605. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
- -----------------------
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1602(b), in which case the Company or the Holders of Securities of
the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting of the Holders of Securities of any series
each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of Outstanding Securities of such
series held or represented by him (determined as specified in the
definition of "Outstanding" in Section 101); provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be
adjourned from time to time by Persons 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.
95
SECTION 1606. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1602 and, if applicable, Section 1604. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
96
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and attested, all as of the day and year first above
written.
VIACOM INC.,
as Issuer
By: /s/ Vaughn A. Clarke
----------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice-President, Treasurer
Attest: /s/ Lawrence J. Rubin
--------------------------
Name: Lawrence J. Rubin
Title: Assistant Secretary
VIACOM INTERNATIONAL INC.,
as Guarantor
By: /s/ Vaughn A. Clarke
----------------------------------
Name: Vaughn A. Clarke
Title: Senior Vice-President, Treasurer
Attest: /s/ Lawrence J. Rubin
--------------------------
Name: Lawrence J. Rubin
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By: /s/ James E. Schultz
----------------------------------
Name: James E. Schultz
Title: Account Manager
Attest: /s/ Emily Grier Lea
------------------------
Name: Emily Grier Lea
Title: Account Manager
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States persons(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v), are herein referred to as
"financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise Viacom Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United
States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-1-2
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance
with your Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to U.S.$__________
of such interest in the above-captioned Securities in respect of which we
are not able to certify and as to which we understand an exchange for an
interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot
be made until we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
[To be dated no earlier than
the 15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment Date
occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
----------------------------------------
(Authorized Signatory)
--------------------
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as persons
entitled to a portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the date
hereof, [U.S.$]__________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of
the United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"),
(ii) is owned by United States person(s) that are (a) foreign branches of
United States financial institutions (financial institutions, as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v), are herein referred to
as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Viacom
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect,
that financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-2
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of
the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment Date
occurring prior to the
Exchange Date, as applicable]
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, as Operator of
the Euroclear System]
[Cedel S.A.]
By
--------------------------------------
Exhibit 4.4
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 24, 1995
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________________________________________
Senior Debt Securities
FIRST SUPPLEMENTAL INDENTURE, dated as of May 24, 1995, among
VIACOM INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL
-------
INC., a Delaware corporation (the "Guarantor"), and THE FIRST NATIONAL BANK
---------
OF BOSTON, a national banking association (the "Trustee"), as Trustee under
-------
the Indenture (the "Indenture"), dated as of May 15, 1995, among the Company,
---------
the Guarantor and the Trustee.
RECITALS OF THE COMPANY
WHEREAS, Section 901(1) of the Indenture permits supplements
thereto without the consent of Holders of Securities to add to the covenants
of the Company for the benefit of all or any series of Securities;
WHEREAS, Section 901(4) of the Indenture permits supplements
thereto without the consent of the Holders of Securities to change any
provisions of the Indenture where there are no Securities Outstanding which
are entitled to the benefit of such provision; and
WHEREAS, the Company wishes to add to the covenants of the Company
for the benefit of the Holders of all Securities and to make certain changes
to other provisions of the Indenture, unless otherwise specified as
contemplated by Section 301 of the Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
SECTION 1. For purposes of this First Supplemental Indenture, all terms
used herein, unless otherwise defined, shall have the meaning assigned to
them in the Indenture.
SECTION 2. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
101 of the Indenture shall be amended by deleting the definitions of
"Company", "Guarantor" and "Principal Property" and replacing such
definitions with the following definitions:
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Guarantor" means the Person named as the "Guarantor" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall mean such
successor Person.
2
"Principal Property" means any parcel of real property
and related fixtures or improvements (other than telecommunications
equipment, including, without limitation, satellite transponders)
owned by the Company or any Restricted Subsidiary and located in
the United States, the aggregate book value of which on the date of
determination exceeds $500 million, other than any such real
property and related fixtures or improvements which, as determined
in good faith by the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company
and its Subsidiaries, taken as a whole.
SECTION 3. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
101 of the Indenture shall be amended by adding the following definitions,
each in alphabetical order:
"Attributable Debt" means, with regard to a Sale and
Leaseback Transaction with respect to any Principal Property, the
lesser of: (a) the fair market value of such property (as
determined in good faith by the Board of Directors of the Company);
or (b) the present value of the total net amount of rent required
to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and
excluding any unexercised renewal or other extension options
exercisable by the lessee, and excluding amounts on account of
maintenance and repairs, services, taxes and similar charges and
contingent rents), discounted at the rate of interest set forth or
implicit in the terms of such lease (or, if not practicable to
determine such rate, the weighted average interest rate per annum
borne by the Securities of the applicable series then Outstanding)
compounded semi-annually. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net
amount shall be the lesser of the net amount determined assuming
termination upon the first date such lease may be terminated (in
which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be
so terminated) or the net amount determined assuming no such
termination.
"Sale and Leaseback Transaction" means any arrangement
with any Person providing for the leasing by the Company or any
Restricted Subsidiary of any Principal Property which has been or
is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person; provided however, that "Sale and
Leaseback Transaction" shall not include such arrangements that
were existing on the date hereof or at the time any Person owning a
Principal Property becomes a Restricted Subsidiary (whether by
acquisition or otherwise, including through merger or
consolidation).
3
SECTION 4. For the benefit of the Holders of the Company's 7.75% Senior
Notes due 2005 only, Section 307 shall be amended by deleting the first
paragraph thereof and replacing such paragraph in its entirety with the
following:
(a) Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, interest on any
Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid, in
immediately available funds, to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided however, that each installment
of interest on any Registered Security may at the Company's option
be paid in immediately available funds by transfer to an account
maintained by the payee located in the United States.
SECTION 5. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
501 shall be amended by deleting subparagraph (5) and replacing such
paragraph in its entirety with the following:
(5) the entry by a court having jurisdiction in the
premises of a money judgment in an amount in excess of $100 million
against the Company which has become final and not subject to
appeal, and the continuance of any such judgment unstayed, in
effect and unpaid for a period of 60 days; or
SECTION 6. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Sections
501, 502 and 507 of the Indenture shall be amended by deleting the reference
to "33 1/3%" in each of those sections and replacing such references with
"25%".
SECTION 7. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
504 of the Indenture shall be amended by deleting the last paragraph thereof
and replacing such paragraph in its entirety with the following:
Subject to Article Eight and Section 902, nothing herein
contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of a Security
or of a coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or coupons or the rights of
any such Holder thereof or to authorize the Trustee to vote in
respect of the claim of any such Holder in any such proceeding.
4
SECTION 8. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Article
Eight of the Indenture shall be amended by adding the following covenant:
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantor May Consolidate,
--------------------------------------
etc. Only on Certain Terms.
--------------------------
Neither the Company nor the Guarantor may consolidate or
merge with or into another corporation, or sell or convey all or
substantially all of their respective property and assets to
another Person unless: (i) immediately after such consolidation,
merger, sale or conveyance no Event of Default or Default shall
have occurred and be continuing; (ii) the Person (if other than the
Company or the Guarantor, as the case may be) is a corporation
organized under the laws of the United States or any state thereof;
(iii) the Person (if other than the Company or the Guarantor, as
the case may be) through a supplemental indenture assumes payment
of the principal of (premium, if any, on) and interest on, the
Outstanding Securities of the applicabale series and the
performance and observance of all the covenants and conditions of
the Indenture with respect to the Company or the Guarantor, as the
case may be; (iv) the Company or the Guarantor, as the case may be,
shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
sale or conveyance and such supplemental indenture comply with the
applicable provisions of the Indenture and that all conditions
precedent therein provided for relating to such consolidation,
merger, sale or conveyance have been complied with. The Company
and/or the Guarantor may consolidate or merge with or into, or sell
or convey all or substantially all of their respective property and
assets to, each other or any Subsidiary of either of them. For
purposes of this Section, "sell or convey all or substantially all
of their respective property and assets" shall mean property and
assets contributing in the aggregate at least 80% of the Company's
total consolidated revenues as reported in the Company's last
available periodic financial report (quarterly or annual, as the
case may be) filed with the Commission.
Section 802. Successor Person Substituted.
----------------------------
5
Upon any consolidation by the Company or the Guarantor
with or merger by the Company or Guarantor into any other
corporation or any sale or conveyance of all or substantially all
of the property and assets of the Company or the Guarantor to any
Person in accordance with Section 801, the successor Person formed
by such consolidation or into which the Company or the Guarantor is
merged or to which such sale or conveyance is made shall succeed
to, and be substituted for, and may exercise every right and power
of, the Company or the Guarantor, as the case may be, under this
Indenture with the same effect as if such successor Person had been
named as the Company or the Guarantor, as the case may be, herein,
and in the event of any such sale or conveyance, the Company or the
Guarantor, as the case may be (which terms shall for this purpose
mean the Person named as the "Company" or the "Guarantor" in the
first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in Section
801) shall be discharged of all obligations and covenants under
this Indenture and the Securities and any coupons appertaining
thereto or the Guarantees, as the case may be, and may be dissolved
or liquidated.
SECTION 9. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
901 of the Indenture shall be amended by adding the following purpose as new
subparagraph (8) thereof and renumbering the existing subparagraph (8) as
subparagraph (9):
(8) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor
of the covenants of the Company or the Guarantor, as the case may
be, herein and in the Securities and the Guarantees in accordance
with Article Eight hereof; or
SECTION 10. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Section
902(1) of the Indenture shall be amended by deleting the first parenthetical
thereof and replacing such parenthetical in its entirety with the following:
(except as contemplated by Section 801(1) and permitted by
Section 901(8))
SECTION 11. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Article
Ten of the Indenture shall be amended by deleting the clause "Subject to any
supplemental indentures hereto or Officer's Certificates creating any
series," in Section 1004 and replacing such clause in its entirety with
"Subject to Article Eight," and by adding the following covenants:
6
Section 1010. Limitations on Liens.
--------------------
The Company shall not create, assume or suffer to exist
any Lien on any of its property or assets, without securing the
Securities of any applicable series equally and ratably with (or
prior to) such secured Indebtedness; provided however, that the
foregoing shall apply only to Liens which in the aggregate exceed
15% of the Company's Total Consolidated Assets as of the end of the
Company's most recent accounting period preceding the creation or
assumption of any such Lien (reduced by any Attributable Debt with
respect to any Sale and Leaseback Transaction permitted under
clause (c) of, but not otherwise permitted under, Section 1011
below). This restriction will not apply to Capitalized Leases or
to Indebtedness secured by (a) Liens existing on the date hereof
and Liens on property of, or Indebtedness of, any Person at the
time such Person becomes a Subsidiary (whether by acquisition or
otherwise, including through merger or consolidation), (b) Liens in
favor of the Company or a Subsidiary of the Company, (c) Liens
existing at the time of acquisition of the assets secured thereby
(including acquisition through merger or consolidation) and
purchase money Liens, and (d) any extension, renewal or refunding
of any Lien referred to in the foregoing clauses (a) through (c),
inclusive.
Section 1011. Limitations on Sale and Leaseback
---------------------------------
Transactions.
------------
The Company shall not, and shall not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any Principal Property unless (a) such
Sale and Leaseback Transaction involves a lease for a term of not
more than three years; (b) such Sale and Leaseback Transaction is
between the Company and a Subsidiary of the Company or between
Subsidiaries of the Company; (c) the Company or such Restricted
Subsidiary would be entitled to incur indebtedness secured by a
Lien on such Principal Property involved in such Sale and Leaseback
Transaction at least equal in amount to the Attributable Debt with
respect to such Sale and Leaseback Transaction pursuant to the
first sentence of the "Limitations on Liens" covenant in Section
1010 above without equally and ratably securing the Securities of
any applicable series pursuant to such covenant; (d) the proceeds
of such Sale and Leaseback Transaction are at least equal to the
fair market value thereof (as determined in good faith by the Board
of Directors of the Company) and the Company applies an amount
equal to the greater of the net proceeds of such sale or the
Attributable Debt with respect to such Sale and Leaseback
Transaction within 180 days of such sale to either (or a
combination) of (i) the retirement (other than the mandatory
retirement, mandatory prepayment or sinking fund payment or by
payment at maturity) of
7
debt for borrowed money of the Company or a Subsidiary of the Company
that matures more than 12 months after its creation (other than debt
that is subordinated to the Securities or debt to the Company or a
Subsidiary of the Company) or (ii) the purchase, construction or
development of other comparable property; or (e) such Sale and Leaseback
Transaction is entered into within 180 days after the initial
acquisition by the Company or such Restricted Subsidiary, as the case
may be, of the Principal Property subject to such Sale and Leaseback
Transaction.
SECTION 12. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, Sections
1502 and 1503 of the Indenture shall be applicable to all Securities.
Section 1503 of the Indenture shall apply to the covenants set forth in
Sections 1004, 1005, 1006, 1010 and 1011 of the Indenture as they apply to
the Securities of any series.
SECTION 13. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST
SUPPLEMENTAL INDENTURE.
SECTION 14. This First Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the
same instrument.
8
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed and attested, all as of the day and year first
written above.
VIACOM INC.
By: /s/ Vaughn A. Clarke
--------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ Lawrence J. Rubin
---------------------
Name: Lawrence J. Rubin
Title: Assistant Secretary
VIACOM INTERNATIONAL INC.
By: /s/ Vaughn A. Clarke
--------------------
Name: Vaughn A. Clarke
Title: Senior Vice President, Treasurer
ATTEST:
By: /s/ Lawrence J. Rubin
---------------------
Name: Lawrence J. Rubin
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ James E. Schultz
--------------------
Name: James E. Schultz
Title: Account Manager
ATTEST:
By: /s/ Emily Grier Lea
-------------------
Name: Emily Grier Lea
Title: Account Manager
EXHIBIT 4.5
EXECUTION COPY
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
STATE STREET BANK AND TRUST COMPANY,
Trustee
_______________________________________________
SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1
Dated as of December 15, 1995
Supplementing and Amending the Indenture
Dated as of May 15, 1995
as Supplemented by the First Supplemental Indenture
Dated as of May 24, 1995
_______________________________________________
Senior Debt Securities
SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1, dated as of
December 15, 1995, among VIACOM INC., a Delaware corporation (the "Company"),
-------
VIACOM INTERNATIONAL INC., a Delaware corporation (the "Guarantor"), and STATE
---------
STREET BANK AND TRUST COMPANY, a Massachusetts banking corporation, as successor
to The First National Bank of Boston (the "Trustee"), as Trustee under the
-------
Indenture, dated as of May 15, 1995, as supplemented by the First Supplemental
Indenture, dated as of May 24, 1995, among the Company, the Guarantor and the
Trustee (as so supplemented and amended, the "Indenture").
---------
RECITALS OF THE COMPANY
WHEREAS, State Street Bank and Trust Company has succeeded The First
National Bank of Boston as Trustee pursuant to Section 610 of the Indenture;
WHEREAS, Section 901(8) of the Indenture permits supplements thereto
without the consent of Holders of Securities to cure any ambiguity or to make
any other provisions with respect to matters or questions arising under the
Indenture;
WHEREAS, the Company wishes to make certain changes to provisions of
the Indenture.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1
WITNESSETH:
SECTION 1. For purposes of this Second Supplemental Indenture and Amendment
No. 1, all terms used herein, unless otherwise defined, shall have the meaning
assigned to them in the Indenture.
SECTION 2. For the benefit of the Holders of all Securities, Section 101 of
the Indenture shall be amended by adding the following definition, such
definition to be deemed inserted in Section 101 so as to preserve the
alphabetical order of all definitions in such Section 101, as supplemented
hereby:
"7.75% Notes" means the 7.75% Senior Notes due June 1, 2005 of the
Company, issued pursuant to this Indenture.
SECTION 3. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, the
definition of "Sale and Leaseback Transaction" in Section 101 of the Indenture
shall be amended by adding the phrase ", with respect to a particular series of
Securities (provided however, that the phrase `, with respect to a particular
series of Securities' shall not be included in the text of this definition as it
applies to the 7.75% Notes)," immediately after the word "not" in such
definition, and by adding the phrase "(in the case of the 7.75% Notes) and the
date of issuance of such series of Securities (in the case of Securities other
than the 7.75% Notes)" immediately after the word "hereof" in such definition.
2
SECTION 4. For the benefit of the Holders of all Securities, Section 307
shall be amended by deleting the first paragraph thereof and replacing such
paragraph in its entirety with the following:
(a) Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, interest on any
Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid, in
immediately available funds, to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section
1002; provided however, that each installment of interest on any
Registered Security may at the Company's option be paid in immediately
available funds by transfer to an account maintained by the payee
located in the United States.
SECTION 5. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, the last
sentence of Section 801 of the Indenture shall be amended by adding the phase
"or the Guarantor's, as the case may be," immediately after the first use of the
word "Company's" in such sentence and by adding the phrase "which, in the case
of the Company, shall be" immediately after the word "revenues" in the same
sentence.
SECTION 6. For the benefit of the Holders of all Securities, unless
otherwise specified as contemplated by Section 301 of the Indenture, the second
sentence of Section 1010 of the Indenture shall be amended by adding the phrase
", with respect to a particular series of Securities (provided however, that the
phrase `, with respect to a particular series of Securities' shall not be
included in the text of this Section 1010 as it applies to the 7.75% Notes),"
immediately after the word "not" in such sentence, and by adding the phrase "(in
the case of the 7.75% Notes) and the date of issuance of such series of
Securities (in the case of Securities other than the 7.75% Notes)" immediately
after the word "hereof" in the same sentence.
SECTION 7. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SECOND
SUPPLEMENTAL INDENTURE AND AMENDMENT NO. 1.
SECTION 8. This Second Supplemental Indenture and Amendment No. 1 may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but such counterparts shall together constitute but
one and the same instrument.
3
IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture and Amendment No. 1 to be duly executed and attested, all as of the
day and year first written above.
ATTEST: VIACOM INC.
By: /s/ Lawrence J. Rubin By: /s/ Vaughn A. Clarke
--------------------- --------------------
Name: Lawrence J. Rubin Name: Vaughn A. Clarke
Title: Assistant Secretary Title: Senior Vice President, Treasurer
ATTEST: VIACOM INTERNATIONAL INC.
By: /s/ Lawrence J. Rubin By: /s/ Vaughn A. Clarke
--------------------- --------------------
Name: Lawrence J. Rubin Name: Vaughn A. Clarke
Title: Assistant Secretary Title: Senior Vice President, Treasurer
ATTEST:
STATE STREET BANK AND TRUST COMPANY
By: /s/ James E. Schultz By: /s/ Roland S. Gustafsen
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Name: James E. Schultz Name: Roland S. Gustafsen
Title: Assistant Secretary Title: Assistant Vice President