As filed with the Securities and Exchange Commission on November 2, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<S> <C> <C>
Comcast Cable Communications, Inc. Delaware 23-2175755
Comcast Cable Trust I Delaware To be applied for
Comcast Cable Trust II Delaware To be applied for
Comcast Cable Trust III Delaware To be applied for
(Exact Name of Registrant (State or Other Jurisdiction of (I.R.S. Employer
as Specified in its Charter) Incorporation or Organization) Identification No.)
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<S> <C>
Comcast Cable Communications, Inc. William E. Dordelman
1105 North Market Street 1500 Market Street
Wilmington, Delaware 19801 Philadelphia, Pennsylvania 19102
(302) 427-8991 (215) 665-1700
(Address, including zip code, and telephone number, (Name, address, including zip code, and
including area code, of Registrant's principal telephone number, including area code,
executive offices) of agent for service)
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Copies to:
Bruce K. Dallas
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities being offered only in connection with dividend
or interest reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. |_| __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered(1)(2) Per Unit(3) Price(3) Registration Fee(4)
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Senior debt securities and subordinated
debt securities (collectively,
"Debt Securities") of Comcast Cable
Communications, Inc......................
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Warrants to Purchase Debt Securities........
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Purchase Contracts of Comcast Cable
Communications, Inc......................
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Units.......................................
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Preferred Securities of Comcast Cable
Trust I..................................
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Preferred Securities of Comcast Cable
Trust II.................................
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Preferred Securities of Comcast Cable
Trust III................................
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Guarantee of Preferred Securities of
Comcast Cable Trust I, Comcast
Cable Trust II and Comcast Cable
Trust III(5).............................
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Total....................................... $1,000,000,000 100% $1,000,000,000 $278,000
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(1) Such indeterminate number of amount of Debt Securities, Warrants,
Purchase Contracts and Units of Comcast Cable Communications, Inc. and
Preferred Securities of Comcast Cable Trust I, Comcast Cable Trust II and
Comcast Cable Trust III as may from time to time be issued at
indeterminate prices and the related Preferred Securities Guarantees.
(2) Such amount in U.S. dollars or the equivalent thereof in foreign
currencies as shall result in an aggregate initial offering price for all
securities of $1,000,000,000. In addition, this Registration Statement
includes such presently indeterminable number of offered securities as
may be issuable from time to time upon conversion or exchange of the
securities being registered hereby.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and exclusive of accrued interest and dividends,
if any.
(4) The registration fee has been calculated pursuant to Rule 457(o) and
reflects the offering price rather than the principal amount of any Debt
Securities offered at a discount.
(5) Comcast Cable Communications, Inc. is also registering under this
registration statement all other obligations that it may have with
respect to Preferred Securities issued by Comcast Cable Trust I, Comcast
Cable Trust II and Comcast Cable Trust III. No separate consideration
will be received for any Guarantee or any other such obligations.
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The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS Subject to Completion
Issued November 2, 1998
Comcast Cable Communications, Inc.
COMCAST CABLE TRUST I
$1,000,000,000 COMCAST CABLE TRUST II
COMCAST CABLE TRUST III
1105 North Market Street
Wilmington, Delaware 19801
(302) 427-8991
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The following are types of securities that we may offer and sell under this
Prospectus:
o Unsecured Senior Debt Securities o Unsecured Subordinated Debt
o Warrants to Purchase Debt Securities Securities
o Units o Purchase Contracts
In addition, we, in conjunction with our newly created trust subsidiaries,
may offer and sell:
o Guaranteed Trust Preferred Securities
We will describe in a Prospectus Supplement, which must accompany this
Prospectus, the securities we are offering and selling, as well as the specific
terms of the securities. Those terms may include:
o Maturity o Redemption Terms
o Interest Rate o Listing on a Securities Exchange
o Sinking Fund Terms o Amount Payable at Maturity
o Currency of Payments
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Investing in the securities involves risks that are described under the
caption "Risk Factors" beginning on page 4.
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The Securities and Exchange Commission and state securities regulators
have not approved or disapproved these securities, or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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We may offer the securities in amounts, at prices and on terms determined
at the time of offering. We and our trust subsidiaries may sell the securities
directly to you, through agents we select, or through underwriters and dealers
we select. If we use agents, underwriters or dealers to sell the securities, we
will name them and describe their compensation in a Prospectus Supplement.
November , 1998.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED.
You should rely only on the information contained in this Prospectus, in
the accompanying Prospectus Supplement and in material we file with the
Securities and Exchange Commission (the "SEC"). We have not authorized anyone
to provide you with information that is different. We are offering to sell, and
seeking offers to buy, the securities described in the Prospectus only where
offers and sales are permitted. The information contained in this Prospectus,
the Prospectus Supplement and our filings with the SEC is accurate only as of
its date, regardless of the time of delivery of this Prospectus and the
Prospectus Supplement or of any sale of the securities.
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TABLE OF CONTENTS
Available Information.........................................................2
Incorporation of Certain Documents by Reference...............................3
Risk Factors..................................................................4
Comcast Cable Communications, Inc.............................................7
Trust Subsidiaries............................................................9
Use of Proceeds...............................................................9
Consolidated Ratio of Earnings to Fixed Charges..............................10
Description of the Senior Debt Securities and Subordinated
Debt Securities.........................................................10
Description of Debt Warrants.................................................22
Description of Purchase Contracts............................................24
Description of Units.........................................................24
Description of the Guaranteed Trust Preferred
Securities..............................................................24
Description of the Guaranteed Trust Preferred
Securities Guarantees...................................................26
Global Securities............................................................29
Plan of Distribution.........................................................30
Legal Matters................................................................31
Experts......................................................................31
Glossary.....................................................................32
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AVAILABLE INFORMATION
We, along with our trust subsidiaries, have filed this Prospectus as part
of a combined Registration Statement on Form S-3 with the SEC. The Registration
Statement contains exhibits and other information that are not contained in
this Prospectus. In particular, the Registration Statement includes as exhibits
copies of our Senior Indenture, a form of the Subordinated Indenture, the
Declaration of Trust of each of our trust subsidiaries, a form of Amended and
Restated Declaration of Trust to be adopted in connection with the issuance of
any Guaranteed Trust Preferred Securities, a form of Guarantee for the
Guaranteed Trust Preferred Securities, a form of Unit Agreement (which contains
a form of Purchase Contract) and a form of Pledge Agreement. Our descriptions
in this Prospectus of the provisions of documents filed as an exhibit to the
Registration Statement or otherwise filed with the SEC are only summaries of
the documents' material terms. If you want a complete description of the
content of the documents, you should obtain the documents yourself by following
the procedures described below.
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document we file at the SEC's public
reference room located at 450 Fifth Street, N.W., Washington, D.C. 20549, at
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661 and at Seven
World Trade Center, 13th Floor, New York, New York 10048. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. You
may also read our SEC filings, including the complete Registration Statement
and all of the exhibits to it, through the SEC's web site at
http://www.sec.gov.
Our trust subsidiaries have been created solely to issue Guaranteed Trust
Preferred Securities for our financing purposes. We do not plan to provide
separate financial statements for our trust subsidiaries because you will be
relying on our ability to make payments on our debt securities held by the
trust subsidiaries or on our guarantee, rather than the trust subsidiaries'
independent ability to make payments on the Guaranteed Trust Preferred
Securities. In addition, although our trust subsidiaries would normally be
required to file information with the SEC on an ongoing basis, we expect the
SEC to exempt the trust subsidiaries from this filing obligation for as long as
we continue to file our information with the SEC.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you directly to those documents. The information incorporated by
reference is considered to be part of this Prospectus. In addition, information
we file with the SEC in the future will automatically update and supersede
information contained in this Prospectus and the accompanying Prospectus
Supplement. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the securities we are
offering:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1998 and June 30, 1998; and
3. The Company's Current Report on Form 8-K dated September 17, 1998.
We will provide free copies of any of those documents, if you write or
telephone us at: 1105 North Market Street, Wilmington, DE 19801, (302)
427-8991.
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We are a Delaware corporation and have an office at 1105 North Market
Street, Wilmington, DE 19801. Our telephone number is (302) 427-8991. We also
have a world wide web site at http://www.comcastcable.com. The information
posted at our web site is not incorporated into this Prospectus. In this
Prospectus, the terms Company, Comcast Cable, we, us and our refer to Comcast
Cable Communications, Inc. The term trust subsidiaries refers to Comcast Cable
Trust I, Comcast Cable Trust II and Comcast Cable Trust III. The terms Comcast
Corporation and Comcast refer to Comcast Corporation, which owns all of our
voting securities. Other terms used in this Prospectus are defined in the
Glossary, beginning on page 32.
Each trust subsidiary has the sole obligation to make payments to you on
the Guaranteed Trust Preferred Securities. However, our obligations to each
trust subsidiary and our Guaranteed Trust Preferred Securities Guarantee are
equivalent to our full and unconditional guarantee on a subordinated basis of
each trust subsidiary's payments to you on the Guaranteed Trust Preferred
Securities. We have the sole obligation to make payments to you on all other
securities. Comcast Corporation has no obligation to make any payments to you
on any of the securities.
RISK FACTORS
You should carefully review the information contained in this Prospectus,
but should particularly consider the following matters.
In this Prospectus we state our beliefs of future events and our future
financial performance. In some cases, you can identify those so-called
"forwardlooking statements" by words such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential," or "continue" or the negative of those words and other comparable
words. You should be aware that those statements are only our predictions.
Actual events or results may differ materially. In evaluating those statements,
you should specifically consider various factors, including the risks outlined
below. Those factors may cause our actual results to differ materially from any
of our forward-looking statements.
Factors Affecting Future Operations
The cable communications industry may be affected by, among other things:
o changes in government laws and regulations;
o changes in the competitive environment;
o changes in technology;
o franchise related matters;
o market conditions that may adversely affect the availability of debt
and equity financing for working capital, capital expenditures or other
purposes; and
o general economic conditions.
The federal, state and local governments extensively regulate the cable
communications industry. We cannot predict what future actions Congress, the
Federal Communications Commission ("FCC") or other regulatory authorities may
take or what the effect of future actions may have on the cable communications
industry generally or on us in particular.
Local authorities grant us franchises that permit us to operate our cable
systems. We have to renew or renegotiate these franchises from time to time. We
can not predict whether we will be able to renew our franchises or the terms
that we may be able to negotiate.
Holding Company Structure; Dependence on
Payments from Subsidiaries; Effective
Subordination
We are a holding company, which means that we conduct all of our
operations through subsidiaries. Our ability to pay our obligations, including
our obligation to make payments on the securities we are offering depends upon
our subsidiaries repaying investments and advances we have made to them and
upon their earnings and their distributing those earnings to us. Our
subsidiaries are separate and distinct legal entities and have no obligation
whatsoever to pay any amounts due on the securities or to make funds available
to us. Our subsidiaries' ability to pay dividends or make other payments or
advances to us will depend upon their operating results and will be subject to
applicable laws and contractual restrictions. These contractual restrictions
include our subsidiaries' obligations to make payments to Comcast under their
management agreements and some of their programming contracts. Some of our
subsidiaries' loan agreements require them to maintain certain financial ratios
and contain restrictions on the subsidiaries' ability to make dividends, pay
management fees and advance funds to affiliated entities, including us. The
indentures that govern the terms of our debt do not currently limit our
subsidiaries' ability to enter into additional agreements that limit their
ability to make dividends or other payments or advances to us.
Our debt securities and our trust subsidiaries' Guaranteed Trust Preferred
Securities will be effectively subordinated to all our subsidiaries'
liabilities, including their trade payables and the liquidation value of their
preferred stock. This means that our subsidiaries must pay their trade
creditors and preferred stockholders in full before their assets are available
to us to pay you. In addition, even if we are a creditor of one of our
subsidiaries, our claim would be subordinated to any security interest in its
assets and to any of its indebtedness. As of June 30, 1998, our subsidiaries'
total indebtedness and other liabilities (including trade payables and accrued
liabilities) was approximately $2.7 billion.
Recent and Anticipated Losses
In recent years, we have grown significantly through both strategic
acquisitions and growth in our existing businesses. These acquisitions
significantly increased our revenues, expenses, operating income before
depreciation and amortization, depreciation expense, amortization expense and
net interest expense. We expect that we will continue to report significant
losses because of the increases in depreciation expense, amortization expense
and interest expense associated with these acquisitions and their financing.
Our losses before extraordinary items for the six months ended June 30, 1998
and 1997 and for the years ended December 31, 1997, 1996 and 1995 were $54.2
million, $65.8 million, $112.1 million, $22.6 million and $48.9 million,
respectively. If we fail to become profitable in the future, we may have
difficulty continuing our operations and obtaining additional required funds.
Moreover, if we fail to become profitable in the future, we may have difficulty
paying you on the securities and paying our other creditors. See "--Substantial
Leverage."
Competition
Cable communications systems face competition from alternative methods of
receiving and distributing television signals and from other sources of news,
information and entertainment such as off-air television broadcast programming,
newspapers, movie theaters, live sporting events, interactive online computer
services and home video products, including videotape cassette recorders. The
extent to which a cable communications system is competitive depends, in part,
upon the cable system's ability to provide, at a reasonable price to consumers,
a greater variety of programming and other communications services than are
available off-air or through other alternative delivery sources and upon
superior technical performance and customer service.
The Telecommunication Act of 1996 (the "1996 Telecom Act") makes it easier
for local exchange telephone companies and others to provide a wide variety of
video services competitive with services provided by cable systems. Various
local exchange telephone companies currently are providing video services
within and outside their telephone service areas through a variety of
distribution methods, including the deployment of broadband cable networks and
the use of wireless transmission facilities. Local exchange telephone companies
in various states have either announced plans, obtained local franchise
authorizations or are currently competing with certain of our cable
communications systems. Currently, the most significant competition is from an
affiliate of Ameritech Corporation which has been awarded cable franchises in
certain areas in the State of Michigan that are currently served by us as the
incumbent cable operator. Local exchange telephone companies and other
companies also provide facilities for the transmission and distribution to
homes and businesses of interactive computer-based services, including the
Internet, as well as data and other non-video services. Cable systems could be
placed at a competitive disadvantage if the delivery of video and interactive
online computer services by local exchange telephone companies becomes
widespread because those companies are not required, under certain
circumstances, to obtain local franchises to deliver those services or to
comply with the variety of obligations imposed upon cable systems under local
franchises. The ability of local exchange telephone companies to
cross-subsidize video, data and telephony services also poses strategic
disadvantages for cable operators seeking to compete with those companies. We
cannot predict the likelihood of success of video or broadband service ventures
by local exchange telephone companies or the impact on us of those competitive
ventures.
Cable communications systems generally operate pursuant to franchises
granted on a non-exclusive basis. In addition, the Cable Television Consumer
Protection and Competition Act of 1992 (the "1992 Cable Act") prohibits
franchising authorities from unreasonably denying requests for additional
franchises and permits franchising authorities to operate cable systems. To
this end, new facilities-based competitors such as RCN Corporation and Knology
Holdings, Inc. are now offering cable and related communications services in
several areas where we hold franchises. Furthermore, well-financed businesses
from outside the cable industry (such as the public utilities that own certain
of the poles on which cable is attached) may become competitors for franchises
or providers of competing services.
Congress has enacted legislation and the FCC has adopted regulatory
policies providing a more favorable operating environment for new and existing
technologies that provide, or have the potential to provide, substantial
competition to cable systems. Those technologies include direct broadcast
satellite service, commonly referred to as DBS, whereby signals are transmitted
by satellite to receiving facilities located on customer premises.
DBS systems use digital video compression technology to increase the
channel capacity of their systems to provide movies, broadcast stations and
other program services comparable to those of cable systems. DBS programming is
currently available to individual households, condominiums and apartment and
office complexes through conventional, medium and high-power satellites. DBS
currently has certain advantages over cable systems, such as increased channel
capacity and digital picture quality, although its disadvantages currently
include up-front customer equipment and installation costs and a lack of local
programming and service. Several major companies are offering or are currently
developing nationwide high-power DBS services, including DirectTV, Inc. and
EchoStar Communications Corporation. Additionally, Primestar Inc., a DBS
provider in which Comcast holds indirectly a 9.5% ownership interest, offers
video programming from a medium-power DBS satellite system.
The FCC and Congress from time to time consider proposals to enhance the
ability of DBS providers to gain access to additional programming and to
authorize DBS carriers to transmit local signals to local markets. The
availability of reasonably-priced home satellite dish earth stations also
enables individual households to receive many of the satellite-delivered
program services formerly available only to cable subscribers. Furthermore, the
1992 Cable Act contains provisions, which the FCC has implemented with
regulations, to enhance the ability of cable competitors to purchase and make
available to home satellite dish earth station owners certain
satellite-delivered cable programming at competitive costs. The 1996 Telecom
Act and FCC regulations implementing that law preempt certain local
restrictions on the use of home satellite dish earth stations and roof-top
antennae to receive satellite programming and over-the-air broadcasting
services. Cable operators face additional competition from private satellite
master antenna television systems, commonly known as SMATV systems, that serve
condominiums, apartment and office complexes and private residential
developments.
Cable operators also compete with wireless program distribution services
such as analog and digital multichannel, multipoint distribution service,
commonly known as MMDS, which use microwave frequencies to transmit video
programming over-the-air to subscribers. There are MMDS operators who are
authorized to provide or are providing broadcast and satellite programming to
subscribers in areas served by our cable systems. Additionally, the FCC adopted
regulations allocating frequencies in the 28-GHz band for a new multichannel
wireless video service called local multipoint distribution service, commonly
known as LMDS, that is similar to MMDS. The FCC initiated spectrum auctions for
LMDS licenses in February 1998.
Other new technologies may become competitive with services that cable
communications systems can offer. Advances in communications technology, as
well as changes in the marketplace and the regulatory and legislative
environment are constantly occurring. Thus, we cannot predict the effect that
ongoing or future developments might have on the cable communications industry
or on our operations.
Substantial Leverage
Our capital structure includes a substantial amount of debt. As of June
30, 1998, our consolidated indebtedness was $4.6 billion and our consolidated
stockholder's equity was $212.9 million. For the six months ended June 30, 1998
and for the year ended December 31, 1997, our earnings would have been
insufficient to cover fixed charges by $74.9 million and $155.7 million,
respectively. The indentures that govern the terms of our debt do not restrict
our ability or our subsidiaries' ability to incur additional indebtedness. The
degree to which we incur additional debt could have important consequences to
holders of the securities, including:
o limiting our ability to obtain any necessary financing in the future
for working capital, capital expenditures, debt service requirements or other
purposes;
o requiring us to dedicate a substantial portion of our cash flows from
operations to the payment of indebtedness and not for other purposes, such as
working capital and capital expenditures;
o limiting our flexibility to plan for or react to, changes in our
business;
o making us more indebted than some of our competitors, which may place
us at a competitive disadvantage; and
o making us more vulnerable to a downturn in our business.
Absence of Public Market for the Securities
The securities we are offering will be new issues of securities for which
there is currently no trading market. We cannot predict whether an active
trading market for the securities will develop or be sustained. If an active
trading market were to develop, the securities could trade at prices that may
be lower than the initial offering price of the securities. Whether or not the
securities could trade at lower prices depends on many factors, including:
o prevailing interest rates and the markets for similar securities;
o general economic conditions; and
o our financial condition, historic financial performance and future
prospects.
In addition, the Guaranteed Trust Preferred Securities may trade at a
price that does not fully reflect the value of accrued but unpaid interest on
the underlying Subordinated Debt Securities. This could have adverse tax
consequences to you, if you dispose of your Guaranteed Trust Preferred
Securities between record dates for payments. See any accompanying Prospectus
Supplement relating to Guaranteed Trust Preferred Securities for more
information on the tax implications of your purchase of Guaranteed Trust
Preferred Securities.
COMCAST CABLE COMMUNICATIONS, INC.
We develop, manage and operate hybrid fibercoaxial broadband cable
networks. We are currently the fourth-largest cable television system operator
in the United States and, as of June 30, 1998, served 4.5 million customers of
the 7.3 million households our systems passed. We are a wholly owned subsidiary
of Comcast Corporation.
Over 80% of our customers are located in ten regional clusters throughout
the United States. By acquiring and developing systems in geographic proximity,
we have realized operating efficiencies through the consolidation of various
managerial, administrative and technical functions. Consistent with this
approach, we are currently consolidating the majority of our local customer
service call centers into large regional operations. These regional call
centers have technically advanced telephone systems that provide 24-hour per
day call answering, telemarketing and other services. As of June 30, 1998, we
had eight of these call centers in operation, serving approximately 2.1 million
subscribers. We intend to expand the number of call centers in operation to ten
by the end of 1998, bringing the total number of subscribers we serve by call
center to approximately 2.4 million. These centers will allow us to better
serve our customers, as well as to cross-market new products and services.
We consider technological innovation to be an important component of our
service offerings and a contributor to customer satisfaction. Through the use
of fiber optic cable and other technological improvements, we have increased
system reliability, channel capacity and our ability to deliver advanced video,
high-speed Internet access, telephony and data services. The majority of our
subscribers are currently served by systems that have the capacity to carry in
excess of 70 channels. We are currently implementing a significant network
upgrade of most of our cable systems. The upgraded systems will generally have
capacity in excess of 100 channels with improved picture quality and will have
two-way communication and digital transmission capabilities.
We derive the majority of our revenues from recurring subscription
services and generate additional revenues from non-subscription services such
as advertising, pay-per-view, installation and commissions from electronic
retailing. Monthly subscription rates and related charges vary according to the
type of service selected (such as basic cable, premium cable, sports channels
and special interest channels), as well as the type of equipment rented. In
late 1997, we began marketing, on a limited commercial basis, a new service
that uses digital video compression technology to significantly increase the
number of channels available to customers. We subsequently broadened the reach
of this expanded service to several of our larger markets in July 1998, with
the anticipation of continued rollouts in 1999. In December 1996, we began
marketing high-speed Internet access services provided via cable modems to
customers served by certain of our cable systems. As of June 30, 1998, our
Internet access service was available to be marketed to over 1.2 million homes
in six markets and had more than 25,000 customers.
On our behalf, Comcast seeks and secures long-term programming contracts
that generally provide for payment based on either a monthly fee per subscriber
per channel or a percentage of certain subscriber revenues. Comcast charges
each of our subsidiaries for programming on a basis which generally
approximates the amount our subsidiaries would be charged if they purchased the
programming directly from the supplier and did not benefit from the purchasing
power of our consolidated operations.
Programming costs increase in the ordinary course of our business as a
result of increases in the number of subscribers, expansion of the number of
channels provided to customers and contractual rate increases from programming
suppliers. For the six months ended June 30, 1998 and 1997, our total
programming costs were $320.8 million and $286.4 million, respectively, and for
the years ended December 31, 1997, 1996 and 1995, were $560.3 million, $417.0
million and $368.3 million, respectively.
We purchase certain other services, including insurance and employee
benefits, from Comcast under cost-sharing arrangements on terms that reflect
Comcast's actual cost. In addition, Comcast, through management agreements,
manages our subsidiaries' operations, including rebuilds and upgrades. Comcast
charged our subsidiaries management fees of $63.9 million and $58.8 million
during the six months ended June 30, 1998 and 1997, respectively, and $119.3
million, $93.2 million and $83.5 million, in 1997, 1996 and 1995, respectively.
Recent Developments
In May and August 1998, Comcast announced its plan to acquire Jones
Intercable Inc., a Denver, Colorado-based cable television operator, that owns
systems which, upon the closing of certain pending transactions, will serve
approximately 1.0 million customers. Comcast expects to close this acquisition
in the first quarter of 1999. In September 1998, Comcast determined that it
will contribute to us, by means of a capital contribution, all of the shares in
Jones Intercable that it will acquire from BCI Telecom Holding and affiliates
of Glenn R. Jones, Jones Intercable's Chairman and CEO, following the closing
of the acquisition. Upon completion of the contribution, we will own
approximately 12.8 million shares of Jones Intercable's Class A Common Stock
and 2.9 million shares of its Common Stock. Those shares will represent
approximately 37% of the economic and 47% of the voting interest in Jones
Intercable. In addition, the approximately 2.9 million shares of Common Stock
that we will own will represent approximately 57% of the outstanding Common
Stock and will enable us to elect 75% of the Board of Directors of Jones
Intercable. Comcast's contribution to us of the Jones Intercable shares is
subject to regulatory and other approvals. After the contribution, we will
consolidate Jones Intercable in our financial statements. As of June 30, 1998,
Jones Intercable had total indebtedness and other liabilities (including trade
payables and accrued liabilities) of $1.4 billion.
Comcast
Comcast is principally engaged in the development, management and
operation of broadband cable networks, wired and wireless telecommunications
systems and the provision of content. Comcast is the fourth largest domestic
cable company, serving over 4.5 million customers in twenty-one states.
Comcast's wireless operations serve over 800,000 customers in portions of New
Jersey, Pennsylvania and Delaware which encompass a population of approximately
8.4 million. Comcast provides content through its majority owned subsidiaries,
QVC, a leading electronic retailer, E! Entertainment Television,
Comcast-Spectacor and Comcast SportsNet and through other investments,
including The Golf Channel, Speedvision and Outdoor Life.
Comcast owns 100% of our outstanding capital stock and substantially all
of Comcast's domestic cable operations are conducted through us. Additional
information regarding Comcast can be found in reports filed by Comcast with the
SEC.
Our principal executive offices are located at 1105 North Market Street,
Wilmington, Delaware 19801, (302) 427-8991. Comcast, which provides
substantially all management services to our operating subsidiaries, has its
principal executive offices located at 1500 Market Street, Philadelphia,
Pennsylvania 19102-2148, (215) 665-1700.
TRUST SUBSIDIARIES
Each of our trust subsidiaries is a statutory business trust formed under
Delaware law under a separate declaration of trust. We executed as sponsor for
the trust and the trustees for the trust signed in such capacity. We executed,
together with the relevant trustees, declarations of trust with respect to each
trust subsidiary and will execute together with the relevant trustees and
Institutional Trustee, an Amended and Restated Declaration of Trust that
provides for the issuance of Guaranteed Trust Preferred Securities, when we
issue them. Any reference to the "Declaration" means the original declaration
prior to such issuance, and the Amended and Restated Declaration following
issuance, unless otherwise indicated.
We filed a certificate of trust with respect to each of our trust
subsidiaries with the Delaware Secretary of State on October 30, 1998. Each of
our trust subsidiaries exists for the exclusive purposes of:
o issuing the Guaranteed Trust Preferred Securities and common
securities representing undivided beneficial interests in its assets;
o investing the gross proceeds of the Guaranteed Trust Preferred
Securities and common securities in the underlying Subordinated Debt
Securities; and
o engaging in only those other activities necessary or incidental to
the first two purposes.
We will directly or indirectly own all of the common securities of each of our
trust subsidiaries. The common securities will rank equally with, and each
trust subsidiary will make payments on the common securities in proportion to,
the Guaranteed Trust Preferred Securities, except that if an Event of Default
occurs under the Declaration, our rights as holder of the common securities to
payments will be subordinated to your rights as holder of the Guaranteed Trust
Preferred Securities. We will, directly or indirectly, acquire common
securities in an aggregate liquidation amount equal to 3 percent of the total
capital of each of our trust subsidiaries. Each of our trust subsidiaries has a
term of approximately 55 years, but may terminate earlier as provided in its
Declaration. Each of our trust subsidiaries' business and affairs will be
conducted by the trustees we appoint, as the direct or indirect holder of all
the common securities. We, as holder of the common securities, are entitled to
appoint, remove or replace any of, or increase or decrease the number of, the
trustees of each of our trust subsidiaries. The trustees' duties and
obligations are governed by the trust subsidiaries' Declarations. Prior to the
issuance of any Guaranteed Trust Preferred Securities, we will insure that a
majority of the trust subsidiaries' trustees are persons who are our employees
or officers or affiliates and that one trustee of each trust subsidiary is a
financial institution which will not be an affiliate of ours and which will act
as Institutional Trustee and as indenture trustee for purposes of the Trust
Indenture Act of 1939, pursuant to the terms set forth in a Prospectus
Supplement. In addition, unless the Institutional Trustee maintains a principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one trustee of each of our trust subsidiaries
will have its principal place of business or reside in the State of Delaware.
We will pay all of our trust subsidiaries' fees and expenses, including those
relating to any offering of Guaranteed Trust Preferred Securities. In addition,
we guarantee payments on the Guaranteed Trust Preferred Securities to the
extent our trust subsidiaries can themselves make payments on the Guaranteed
Trust Preferred Securities. Each trust subsidiary's principal place of business
is c/o Comcast Cable Communications, Inc., 1105 North Market Street,
Wilmington, Delaware 19801.
USE OF PROCEEDS
We will use the net proceeds from the sale of the securities for our
general corporate purposes, which may include making additions to our working
capital, repaying indebtedness or for any other purposes we describe in the
accompanying Prospectus Supplement. Each of our trust subsidiaries will use all
proceeds received from the sale of the Guaranteed Trust Preferred Securities to
purchase Subordinated Debt Securities from us.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for the periods indicated.
<TABLE>
<CAPTION>
Six Months ended
June 30, Years ended December 31,
----------------- --------------------------------------------
1998 1997 1997 1996 1995 1994 1993
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges........ -- -- -- -- -- -- 1.1
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges, our
earnings consist of income (loss) before extraordinary items, cumulative effect
of accounting changes, income tax expense (benefit) and fixed charges. Fixed
charges consist of our interest expense and interest expense on notes payable
to affiliates. For the six months ended June 30, 1998 and 1997, our earnings
(as described above) were inadequate to cover our fixed charges by $74.9
million and $89.3 million, respectively. For the years ended December 31, 1997,
1996, 1995 and 1994, our earnings (as described above) were inadequate to cover
our fixed charges by $155.7 million, $27.1 million, $73.8 million and $24.8
million, respectively.
DESCRIPTION OF THE SENIOR DEBT SECURITIES AND
SUBORDINATED DEBT SECURITIES
Our Debt Securities, consisting of notes, debentures or other evidences of
indebtedness, may be issued from time to time in one or more series, in the
case of Senior Debt Securities, under a Senior Indenture dated as of May 1,
1997, between the Company and Bank of Montreal Trust Company, as Trustee, and
in the case of Subordinated Debt Securities, under a Subordinated Indenture
between the Company and the trustee we name in the Prospectus Supplement for
such Subordinated Debt Securities. In this section of the Prospectus, we refer
to the Senior Indenture and the Subordinated Indenture as the "Indentures." The
Senior Indenture and the form of the Subordinated Indenture are included as
exhibits to the Registration Statement of which this Prospectus is a part.
Because the following is only a summary of the Indentures and the Debt
Securities, it does not contain all information that you may find useful. For
further information about the Indentures and the Debt Securities, you should
read the Indentures. We refer to the Debt Securities we are offering under this
Prospectus and the accompanying Prospectus Supplement as the "Offered Debt
Securities." As used in this Section of the Prospectus and under captions
"Description of Debt Warrants," "Description of Capital Stock," "Description of
Purchase Contracts" and "Description of Units," the terms we, us and our means
Comcast Cable Communications, Inc.
General
The Senior Debt Securities will constitute unsecured and unsubordinated
obligations of ours and the Subordinated Debt Securities will constitute
unsecured and subordinated obligations of ours. We are a holding company and
conduct all of our operations through subsidiaries. Consequently, our ability
to pay our obligations, including our obligation to pay principal or interest
on the Debt Securities, to pay the Debt Securities at maturity or upon
redemption or to buy the Debt Securities will depend upon our subsidiaries
repaying investments and advances we have made to them and upon their earnings
and their distributing those earnings to us. Our subsidiaries are separate and
distinct legal entities and have no obligation, contingent or otherwise, to pay
any amounts due on the Debt Securities or to make funds available to us to do
so. Our subsidiaries' ability to pay dividends or make other payments or
advances to us will depend upon their operating results and will be subject to
applicable laws and contractual restrictions. These contractual restrictions
include our subsidiaries' obligations to pay Comcast Corporation under certain
management agreements and programming contracts. In addition, some of our
subsidiaries' loan agreements require them to maintain financial ratios and
cash flow levels and contain restrictions on their ability to make dividend
payments, pay management fees and make advances to affiliated entities,
including us. The Indentures will not limit our subsidiaries' ability to enter
into other agreements that prohibit or restrict dividends or other payments or
advances to us.
You should look in the Prospectus Supplement for the following terms of
the Debt Securities being offered:
o the Debt Securities' designation;
o the aggregate principal amount of the Debt Securities;
o the percentage of their principal amount (i.e. price) at which the
Debt Securities will be issued;
o the date or dates on which the Debt Securities will mature and the
right, if any, to extend such date or dates;
o the rate or rates, if any, per year, at which the Debt Securities
will bear interest, or the method of determining such rate or rates;
o the date or dates from which such interest shall accrue, the interest
payment dates on which such interest will be payable or the manner of
determination of such interest payment dates and the record dates for the
determination of holders to whom interest is payable on any interest payment
dates;
o the right, if any, to extend the interest payment periods and the
duration of that extension;
o provisions for a sinking purchase or other analogous fund, if any;
o the period or periods, if any, within which, the price or prices of
which, and the terms and conditions upon which the Debt Securities may be
redeemed, in whole or in part, at our option or at your option;
o the form of the Debt Securities;
o any provisions for payment of additional amounts for taxes and any
provision for redemption, if we must pay such additional amounts in respect of
any Debt Security;
o the terms and conditions, if any, upon which we may have to repay the
Debt Securities early at your option (which option may be conditional) and the
price or prices in the currency or currency unit in which the Debt Securities
are payable;
o the currency, currencies or currency units for which you may purchase
the Debt Securities and the currency, currencies or currency units in which
principal and interest, if any, on the Debt Securities may be payable;
o the terms and conditions, if any, pursuant to which the Debt
Securities may be converted or exchanged for the cash value of other securities
issued by us or by a third party; and
o any other terms of the Debt Securities, including any additional
events of default or covenants provided for with respect to the Debt
Securities, and any terms which may be required by or advisable under
applicable laws or regulations.
You may present Debt Securities for exchange and you may present
registered Debt Securities for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the Prospectus
Supplement. We will provide you those services without charge, although you may
have to pay any tax or other governmental charge payable in connection with any
exchange or transfer, as set forth in the Indenture.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate that at the time of issuance is below
the prevailing market rate may be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the relevant Prospectus
Supplement.
We may issue Debt Securities with the principal amount payable on any
principal payment date, or the amount of interest payable on any interest
payment date, to be determined by reference to one or more currency exchange
rates, securities or baskets of securities, commodity prices or indices. You
may receive a payment of principal on any principal payment date, or a payment
of interest on any interest payment date, that is greater than or less than the
amount of principal or interest otherwise payable on such dates, depending upon
the value on such dates of the applicable currency, security or basket of
Securities, Commodity Or Index. Information As To The Methods For determining
The Amount Of Principal Or Interest Payable On Any Date, The Currencies,
Securities Or Baskets Of Securities, Commodities Or Indices To Which the amount
Payable On Such Date Is Linked And Certain Additional Tax Considerations will
Be Set Forth In The Applicable Prospectus Supplement.
Certain Terms of the Senior Debt Securities
Certain Covenants
Financial Information. We will file with the Trustee, within 15 days after
we are required to file the same under the Securities Exchange Act of 1934,
copies of the annual reports and the information, documents and other reports to
be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
We intend to file all such reports, information and documents with the SEC,
whether or not required by Section 13 or 15(d), and will send copies to the
Trustee within such 15 day period.
Consolidation, Merger and Sale of Assets. We may not consolidate with,
merge with or into, or sell, convey, transfer, lease, or otherwise dispose of
all or substantially all of our property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to any person (other than a consolidation with or merger with or
into or a sale, conveyance, transfer, lease or other disposition to a
Wholly-Owned Restricted Subsidiary with a positive net worth; provided that, in
connection with any merger of us and a Wholly-Owned Restricted Subsidiary, no
consideration (other than common stock in the surviving person or of ours) shall
be issued or distributed to our stockholders) or permit any person to merge with
or into us unless:
o we are the continuing person, or the person (if other than us) formed
by such consolidation or into which we are merged or that acquired or leased
our property and assets shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of our obligations on all of the Debt Securities and under the
Indenture;
o immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
o we deliver to the Trustee an officers' certificate and opinion of
counsel, in each case stating that such consolidation, merger, or transfer and
such supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction have been
complied with; provided, however, that the foregoing limitations shall not
apply if, in the good faith determination of our board of directors, whose
determination must be set forth in a board resolution, the principal purpose of
such transaction is to change our state of incorporation; and provided further
that any such transaction shall not have as one of its purposes the evasion of
the foregoing limitations.
Events of Default
An Event of Default is defined under the Indenture with respect to Debt
Securities of any series issued under the Senior Indenture as being:
o our default in the payment of principal or premium on the Senior Debt
Securities of such series when the same becomes due and payable at maturity,
upon acceleration, redemption, or otherwise;
o our default in the payment of interest on any Senior Debt Securities
of such series when the same becomes due and payable, and such default
continues for a period of 30 days;
o our default in the performance of or we breach any of our other
covenants or agreements in the Indenture with respect to the Senior Debt
Securities of any series or under Senior Debt Securities and such default or
breach continues for a period of 30 consecutive days after written notice by
the Trustee or by the Holders (as defined in the Indenture) of 25% or more in
aggregate principal amount of the Senior Debt Securities of such series;
o there occurs with respect to any issue or issues of our Indebtedness
or any Subsidiary's Indebtedness (other than the Senior Debt Securities of such
series) having an outstanding principal amount of $50 million or more in the
aggregate for all such issues of all such persons, whether such Indebtedness
now exists or shall hereafter be created:
o an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its stated
maturity; and/or
o the failure to make a principal payment at the final (but not
any interim) fixed maturity.
o any final judgment or order (not covered by insurance) for the
payment of money in excess of $50 million in the aggregate for all such final
judgments or orders (treating any deductibles, self-insurance, or retention as
not so covered) shall be rendered against us or any of our Subsidiaries and
shall not be paid or discharged, and there shall be any period of 60
consecutive days following entry of the final judgment or order that causes the
aggregate amount for all such final judgments or orders outstanding and not
paid or discharged against us or any of our Subsidiaries to exceed $50 million
during which a stay of enforcement of such final judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect;
o a court having jurisdiction enters a decree or order for:
o relief in respect of us or any of our Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency, or
other similar law now or hereafter in effect;
o appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official of us or any of our
Subsidiaries or for all or substantially all of our or our
Subsidiaries' property and assets; or
o the winding up or liquidation of our affairs or of those of any
of our Subsidiaries and, in each case, such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days.
o we or any of our Subsidiaries:
o commence a voluntary case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case
under any such law;
o consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator, or
similar official of ours or any of our Subsidiaries or for all or
substantially all of our or our Subsidiaries' property and assets; or
o effect any general assignment for the benefit of creditors.
If an Event of Default (other than an Event of Default specified in the
last two bullet points above that occurs with respect to us) occurs with
respect to an issue of Senior Debt Securities and is continuing under the
Indenture, then, and in each and every such case, either the Trustee or the
holders of not less than 25% in aggregate principal amount of such Senior Debt
Securities then outstanding under the Indenture by written notice to us (and to
the Trustee if such notice is given by the holders (the "Acceleration
Notice")), may, and the Trustee at the request of such holders shall, declare
the principal amount of and accrued interest, if any, on such Senior Debt
Securities to be immediately due and payable. Upon a declaration of
acceleration, such principal amount of and accrued interest, if any, on such
Senior Debt Securities shall be immediately due and payable. If an Event of
Default specified in the last two bullet points above occurs with respect to
us, the principal amount of and accrued interest, if any, on each issue of
Senior Debt Securities then outstanding shall be and become immediately due and
payable without any notice or other action on the part of the Trustee or any
holder. Upon certain conditions such declarations may be rescinded and annulled
and past defaults may be waived by the holders of a majority in aggregate
principal amount of an issue of Senior Debt Securities that has been
accelerated. Furthermore, subject to various provisions in the Senior
Indenture, the holders of at least a majority in aggregate principal amount of
an issue of Senior Debt Securities by notice to the Trustee, may waive an
existing Default or Event of Default with respect to such Senior Debt
Securities and its consequences, except a Default in the payment of principal
of or interest on such Senior Debt Securities or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the holders of each such Senior Debt Securities. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with
respect to such Senior Debt Securities shall be deemed to have been cured, for
every purpose of the Senior Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto. For information as to the waiver of defaults, see "--Modification and
Waiver."
The holders of at least a majority in aggregate principal amount of an
issue of Senior Debt Securities may 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 such Senior Debt
Securities. However, the Trustee may refuse to follow any direction that
conflicts with law or the Senior Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of holders of such issue of Senior Debt Securities
not joining in the giving of such direction and may take any other action it
deems proper that is not inconsistent with any such direction received from
holders of such issue of Senior Debt Securities. A holder may not pursue any
remedy with respect to the Indenture or any series of Senior Debt Securities
unless:
o the holder gives the Trustee written notice of a continuing Event of
Default;
o the holders of at least 25% in aggregate principal amount of such
series of Senior Debt Securities make a written request to the Trustee to
pursue the remedy;
o such holder or holders offer the Trustee indemnity satisfactory to
the Trustee against any costs, liability, or expense;
o the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
o during such 60-day period, the holders of a majority in aggregate
principal amount of such series of Senior Debt Securities do not give the
Trustee a direction that is inconsistent with the request.
However, such limitations do not apply to the right of any holder of a Debt
Security to receive payment of the principal of or interest, if any, on such
Senior Debt Security, or to bring suit for the enforcement of any such payment,
on or after the due date expressed in the Senior Debt Securities, which right
shall not be impaired or affected without the consent of the holder.
The Senior Indenture will require certain of our officers to certify, on
or before a date not more than 90 days after the end of each fiscal year, as to
their knowledge of our compliance with all conditions and covenants under the
Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture.
Discharge and Defeasance
The Senior Indenture provides that, except as otherwise provided in this
paragraph, we may discharge our obligations with respect to an issue of Senior
Debt Securities and the Indenture with respect to such series of Senior Debt
Securities if:
o all Senior Debt Securities of such series previously authenticated and
delivered with certain exceptions, have been delivered to the Trustee for
cancellation and we have paid all sums payable by it under the Indenture; or
o o the Senior Debt Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption;
o we irrevocably deposit in trust with the Trustee, as trust funds
solely for the benefit of the holders of the Senior Debt Securities
of such series, for that purpose, money or U.S. government
obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without
consideration of any reinvestment, to pay principal of and interest
on the Senior Debt Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by
it under the Senior Indenture; and
o we deliver to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the satisfaction
and discharge of the Indenture with respect to the Senior Debt
Securities of such series have been complied with.
With respect to the first bullet point, only our obligations to compensate
and indemnify the Trustee and our right to recover excess money held by the
Trustee under the Indenture shall survive. With respect to the second bullet
point, only our obligations with respect to the issue of defeased Senior Debt
Securities to execute and deliver such Senior Debt Securities for
authentication, to set the terms of such Senior Debt Securities, to maintain an
office or agency in respect of such Senior Debt Securities, to have moneys held
for payment in trust, to register the transfer or exchange of such Senior Debt
Securities, to deliver such Senior Debt Securities for replacement or to be
canceled, to compensate and indemnify the Trustee and to appoint a successor
trustee, and our right to recover excess money held by the Trustee shall
survive until such Senior Debt Securities are no longer outstanding.
Thereafter, only our obligations to compensate and indemnify the Trustee, and
our right to recover excess money held by the Trustee shall survive.
The Senior Indenture also provides that, except as otherwise provided in
this paragraph, we:
o will be deemed to have paid and will be discharged from any and all
obligations in respect of a series of Senior Debt Securities, and the
provisions of the Senior Indenture will no longer be in effect with respect to
such Senior Debt Securities ("legal defeasance"); and
o may omit to comply with any term, provision or condition of the
Senior Indenture described above under "--Certain Covenants" and such omission
shall be deemed not to be an Event of Default under the third clause of the
first paragraph of "--Events of Default" with respect to such series of Senior
Debt Securities ("covenant defeasance");
provided that the following conditions shall have been satisfied:
o we have irrevocably deposited in trust with the Trustee as trust
funds solely for the benefit of the holders of the Senior Debt
Securities of such series, for payment of the principal of and
interest on the Senior Debt Securities of such series, money or U.S.
government obligations or a combination thereof sufficient (unless
such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the principal of
and accrued interest on the Senior Debt Securities of such series to
maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
o such deposit will not result in a breach or violation of, or
constitute a default under, the Indenture or any other material
agreement or instrument to which we are a party or by which we are
bound;
o no Default or Event of Default with respect to the Senior Debt
Securities of such series shall have occurred and be continuing on
the date of such deposit;
o we shall have delivered to the Trustee an opinion of counsel
that (1) the holders of the Senior Debt Securities of such series
will not recognize income, gain or loss for federal income tax
purposes as a result of our exercising our option under this
provision of the Indenture and will be subject to federal income tax
on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred (which opinion, in the case of a legal defeasance, shall be
based upon a change in law) and (2) the Holders of the Senior Debt
Securities of such series have a valid security interest in the trust
funds subject to no prior liens under the Uniform Commercial Code;
and
o we have delivered to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the defeasance
contemplated of the Senior Debt Securities of such series have been
complied with.
In the case of legal defeasance under the first bullet point above, the opinion
of counsel referred to in clause (1) of the fourth sub-bullet point above may
be replaced by a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect. Subsequent to legal defeasance under the
first bullet point above, our obligations with respect to the issue of defeased
Senior Debt Securities to execute and deliver such Senior Debt Securities for
authentication, to set the terms of such Senior Debt Securities, to maintain an
office or agency in respect of such Senior Debt Securities, to have moneys held
for payment in trust, to register the transfer or exchange of such Senior Debt
Securities, to deliver such Debt Securities for replacement or to be canceled,
to compensate and indemnify the Trustee and to appoint a successor trustee, and
its right to recover excess money held by the Trustee shall survive until such
Senior Debt Securities are no longer outstanding. After such Senior Debt
Securities are no longer outstanding, in the case of legal defeasance under the
first bullet point above, only our obligations to compensate and indemnify the
Trustee and our right to recover excess money held by the Trustee shall
survive.
Modification and Waiver
We and the Trustee may amend or supplement the Senior Indenture or the
Senior Debt Securities without notice to or the consent of any holder:
o to cure any ambiguity, defect, or inconsistency in the Senior
Indenture; provided that such amendments or supplements shall not adversely
affect the interests of the holders in any material respect;
o to comply with the provisions described under "--Certain
Covenants--Consolidation, Merger and Sale of Assets";
o to comply with any requirements of the SEC in connection with the
qualification of the Senior Indenture under the Trust Indenture Act;
o to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee;
o to establish the form or forms or terms of the Senior Debt Securities
as permitted by the Senior Indenture;
o to provide for uncertificated Senior Debt Securities and to make all
appropriate changes for such purpose; and
o to make any change that does not materially and adversely affect the
rights of any holder.
Subject to certain conditions, without prior notice to any holder of an
issue of Senior Debt Securities, modifications and amendments of the Senior
Indenture may be made by us and the Trustee with the written consent of the
holders of a majority in principal amount of such series of Senior Debt
Securities, and compliance by us with any provision of the Indenture with
respect to such series of Senior Debt Securities may be waived by written
notice to the Trustee by the holders of a majority in principal amount of such
series of Senior Debt Securities outstanding; provided, however, that no such
modification, amendment or waiver may, without the consent of each holder
affected thereby,
o change the stated maturity of the principal of, or any installment of
interest on, any Senior Debt Securities of such series;
o reduce the principal amount of, or premium, if any, or interest on,
any Senior Debt Securities of such series;
o change the place or currency of payment of principal of, or premium,
if any, or interest on, any Senior Debt Securities of such series;
o change the provisions for calculating the optional redemption price,
including the definitions relating thereto;
o change the provisions relating to the waiver if past defaults or
change or impair the right of holders to receive payment or to institute suit
for the enforcement of any payment of any Senior Debt Securities of such series
on or after the due date therefor;
o reduce the above-stated percentage of outstanding Senior Debt
Securities of such series the consent of whose holders is necessary to modify
or amend or to waive certain provisions of or defaults under the Indenture;
o waive a default in the payment of principal of or interest on the
Senior Debt Securities;
o adversely affect the rights of such holder under any mandatory
redemption or repurchase provision or any right of redemption or repurchase at
the option of such holder; or
o modify any of the provisions of this paragraph, except to increase
any required percentage or to provide that certain other provisions cannot be
modified or waived with the consent of the holder of each Senior Debt Security
of such series affected thereby. It shall not be necessary for the consent of
the holders under this section of the Indenture to approve the particular form
of any proposed amendment, supplement, or waiver, but it shall be sufficient if
such consent approves the substance thereof. After an amendment, supplement, or
waiver under this section of the Indenture becomes effective, we must give to
the holders affected thereby a notice briefly describing the amendment,
supplement, or waiver. We will mail supplemental indentures to holders upon
request. Any failure by us to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
With respect to any issue of Senior Debt Securities, neither we nor any of
our Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee, or otherwise, to any holder of
any such Senior Debt Securities for or as an inducement to any consent, waiver,
or amendment of any of the terms or provisions of such series of Senior Debt
Securities or the Indenture with respect to such series of Senior Debt
Securities unless such consideration is offered to be paid or agreed to be paid
to all holders of such Senior Debt Securities of such series that consent,
waive, or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver, or agreement.
No Personal Liability of Incorporators,
Stockholders, Officers, Directors, or Employees
The Senior Indenture provides that no recourse shall be had under or upon
any obligation, covenant, or agreement of ours in the Indenture or any
supplemental indenture, or in any of the Senior Debt Securities or because of
the creation of any indebtedness represented thereby, against any incorporator,
stockholder, officer, director, employee of ours or of any successor person
thereof under any law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise. Each holder, by accepting the Senior Debt Securities, waives and
releases all such liability.
Concerning the Trustee
The Senior Indenture provides that, except during the continuance of a
Default, the Trustee will not be liable, except for the performance of such
duties as are specifically set forth in the Senior Indenture. If an Event of
Default has occurred and is continuing, the Trustee will exercise such rights
and powers vested in it under the Senior Indenture and will use the same degree
of care and skill in its exercise as a prudent person would exercise under the
circumstances in the conduct of such person's own affairs.
Certain Terms of the Subordinated Debt Securities
Subordination
The Subordinated Debt Securities will be subordinated and junior in right
of payment to certain other indebtedness of ours to the extent set forth in the
applicable Prospectus Supplement.
Issuance of Subordinated Debt Securities to one of our Trust Subsidiaries
If we issue Subordinated Debt Securities to one of our trust subsidiaries
or a trustee of such trust in connection with its issuance of Guaranteed Trust
Preferred Securities, such Subordinated Debt Securities subsequently may be
distributed pro rata to the holders of such Guaranteed Preferred Trust
Securities in connection with the dissolution of such trust subsidiary upon the
occurrence of certain events described in the Prospectus Supplement relating to
such Guaranteed Preferred Trust Securities. Only one series of Subordinated
Debt Securities will be issued to a trust subsidiary or a trustee of such trust
in connection with the issuance of Guaranteed Preferred Trust Securities by
such trust subsidiary.
Certain Covenants
If we issue Subordinated Debt Securities to a trust subsidiary or a
trustee of such trust in connection with the issuance of Guaranteed Trust
Preferred Securities by such trust subsidiary and:
o there shall have occurred any event that would constitute an Event of
Default (as defined herein); or
o we are in default with respect to our payment of any obligations
under the related Guaranteed Trust Preferred Securities Guarantee or Common
Securities Guarantee, then
o we shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of our capital stock (other
than (i) purchases or acquisitions of shares of our common stock in
connection with the satisfaction by us of our obligations under any
employee benefit plans, (ii) as a result of a reclassification of our
capital stock or the exchange or conversion of one class or series of
our capital stock for another class or series of our capital stock or
(iii) the purchase of fractional interests in shares of our capital
stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged) or make
any guarantee payments with respect to the foregoing; and
o we shall not make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by us which rank equally with or junior
to such Subordinated Debt Securities.
If (i) we issue Subordinated Debt Securities to a trust subsidiary or a
trustee of such trust in connection with the issuance of Guaranteed Trust
Preferred Securities by such trust subsidiary and we have exercised our right
to defer payments of interest on such Subordinated Debt Securities by extending
the interest payment period of such Subordinated Debt Securities as provided in
the supplemental indenture relating to such Subordinated Debt Securities and
such period, or any extension thereof, shall be continuing, or (ii) there shall
have occurred any Event of Default, as defined in the Subordinated Indenture,
then:
o we shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of our capital stock or make any guarantee payment with
respect thereto (other than (i) purchases or acquisitions of shares of our
common stock to satisfy our obligations under any employee benefit plans, (ii)
as a result of a reclassification of our capital stock for another class or
series of our capital stock or (iii) the purchase of fractional interests in
shares of our capital stock pursuant to the conversion or exchange provisions
of such capital stock or security being converted or exchanged), or make any
guarantee payment with respect thereto; and
o we shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by us that
rank equally with or junior to such Subordinated Debt Securities. If we issue
Subordinated Debt Securities to a trust subsidiary or a trustee of such trust
in connection with the issuance of Guaranteed Trust Preferred Securities of
such trust subsidiary, for so long as such Guaranteed Trust Preferred
Securities remain outstanding, we will:
o maintain 100 percent direct or indirect ownership of the Common
Securities of such trust subsidiary; provided, however, that any permitted
successor of ours under the Subordinated Indenture may succeed to our ownership
of such Common Securities;
o use our reasonable efforts to cause such trust subsidiary:
o to remain a statutory business trust, except in connection with
the distribution of Subordinated Debt Securities, the redemption of
all of such Guaranteed Trust Preferred Securities of such trust
subsidiary, or certain mergers, consolidations or amalgamations, each
as permitted by the Declaration of such trust subsidiary; and
o to otherwise continue not to be treated as an association
taxable as a corporation or partnership for United States federal
income tax purposes; and
o to use our reasonable efforts to cause each holder of Guaranteed
Trust Preferred Securities to be treated as owning an individual
beneficial interest in the Subordinated Debt Securities.
Limitation on Mergers and Sales of Assets
We may not consolidate with, or merge into, any corporation or convey or
transfer our properties and assets substantially as an entirety to any person
unless:
o we are the continuing person, or the person (of other than us) formed
by such consolidation or into which we are merged or that acquired our property
and assets shall be a corporation organized and validly existing under the laws
of the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of our obligations on all of the Subordinated Debt Securities and under the
Subordinated Indenture; and
o we deliver to the Trustee, at the Trustee's request, an opinion of
counsel stating that any consolidation, merger, conveyance or transfer complies
with this provision.
Events of Default, Waiver and Notice
The Subordinated Indenture provides that any one or more of the following
described events which has occurred and is continuing constitutes an "Event of
Default" with respect to each series of Subordinated Debt Securities:
(a) default for 30 days in payment of any interest on the Subordinated
Debt Securities of that series, including any Additional Interest in
respect thereof, when due; provided, however, that a valid extension of
the interest payment period by us shall not constitute a default in the
payment of interest for this purpose; or
(b) default in payment of principal and premium, if any, on the
Subordinated Debt Securities of that series when due either at maturity,
upon redemption, by declaration or otherwise; provided, however, that a
valid extension of the maturity of such Subordinated Debt Securities shall
not constitute a default for this purpose; or
(c) default by us in the performance of any other of the covenants or
agreements in the Subordinated Debt Indenture which shall not have been
remedied for a period of 90 days after notice; or
(d) certain events of bankruptcy, insolvency or reorganization relating
to us; or
(e) in the event Subordinated Debt Securities are issued to one of our
trust subsidiaries or a trustee of such trust in connection with the
issuance of Guaranteed Trust Preferred Securities by such trust
subsidiary, the voluntary or involuntary dissolution, winding-up or
termination of such trust subsidiary, except in connection with the
distribution of Subordinated Debt Securities to the holders of Guaranteed
Trust Preferred Securities in liquidation of such trust subsidiary, the
redemption of all of the Guaranteed Trust Preferred Securities of such
trust subsidiary, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of such trust subsidiary.
The Subordinated Indenture provides that the Trustee may withhold notice
to the holders of a series of Subordinated Debt Securities (except in payment
of principal or of interest or premium on the Subordinated Debt Securities) if
the Trustee considers it in the interest of such holders to do so.
The Subordinated Indenture provides that, (a) if an Event of Default due
to the default in the payment of principal, interest or premium, if any, on any
series of Subordinated Debt Securities shall have occurred and be continuing,
either the Trustee or the holders of 25 percent in principal amount of the
Subordinated Debt Securities of all series affected thereby then outstanding
may declare the principal and premium, of any, or interest or both, of all such
Subordinated Debt Securities to be due and payable immediately, and (b) if an
Event of Default resulting from default in the performance of any other of the
covenants or agreements in the Subordinated Indenture or certain events of
bankruptcy, insolvency and reorganization relating to us shall have occurred
and be continuing, either the Trustee or the holders of 25 percent in principal
amount of all Subordinated Debt Securities then outstanding (treated as one
class) may declare the principal of all Subordinated Debt Securities to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except defaults in payment of
principal of or interest or premium on the Subordinated Debt Securities) by the
holders of a majority in principal amount of the Subordinated Debt Securities
of such series (or of all series, as the case may be) then outstanding.
The holders of a majority in principal amount of the Subordinated Debt
Securities of any and all series affected and then outstanding shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee under the Subordinated Indenture, provided that
the Trustee may refuse to follow any direction that conflicts with law, that
may involve the Trustee in personal liability or that the Trustee determines
may be unduly prejudicial to Holders not taking part in such action. The
Subordinated Indenture requires us every year to file a certificate with the
Trustee as to the absence of certain defaults under the Subordinated Debt
Indenture.
Modification of the Indenture
The Subordinated Indenture contains provisions permitting us and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Subordinated Debt Securities of all series affected by
such modification at the time outstanding, to modify the Subordinated Indenture
or any supplemental indenture or the rights of the holders of the Subordinated
Debt Securities; provided that no such modification shall (i) extend the fixed
maturity of any Subordinated Debt Security, or reduce the principal amount
thereof or any premium thereon (including in the case of a discounted
Subordinated Debt Security the amount payable thereon in the event of
acceleration or the amount provable in bankruptcy) or any redemption amount
thereon, or reduce the rate or extend the time of payment of interest thereon,
or make the principal of, or interest or premium on, the Subordinated Debt
Securities payable in any coin or currency other than that provided in the
Subordinated Debt Securities, or impair or affect the right of any holder of
Subordinated Debt Securities to institute suit for the payment thereof or the
right of prepayment, if any, at the option of the holder, without the consent
of the holder of each Subordinated Debt Security so affected, or (ii) reduce
the aforesaid percentage of Subordinated Debt Securities the consent of the
holders of which is required for any such modification without the consent of
the holders of each Subordinated Debt Security affected.
Discharge and Defeasance
The Subordinated Indenture provides that, except as otherwise provided in
this paragraph, we may discharge our obligations with respect to an issue of
Subordinated Debt Securities and the Subordinated Indenture with respect to
such series of Subordinated Debt Securities if:
o all Subordinated Debt Securities of such series previously
authenticated and delivered with certain exceptions, have been delivered to the
Trustee for cancellation and we have paid all sums payable by us under the
Indenture; or
o o the Subordinated Debt Securities of such series have matured or
will mature within one year or all of them are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption;
o we irrevocably deposit in trust with the Trustee, as trust funds
solely for the benefit of the holders of the Subordinated Debt
Securities of such series, funds sufficient to pay at maturity or
upon redemption all of the outstanding Subordinated Debt Securities,
including principal and premium, if any, and interest due or to
become due at maturity or redemption, and all other sums payable by
us under the Senior Indenture; and
o we deliver to the Trustee an officers' certificate and an
opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the satisfaction
and discharge of the Indenture with respect to the Subordinated Debt
Securities of such series have been complied with.
With respect to the first bullet point, only our obligations to compensate
and indemnify the Trustee and our right to recover excess money held by the
Trustee under the Subordinated Indenture shall survive. With respect to the
second bullet point, only our obligations with respect to the issue of
Subordinated Debt Securities to execute and deliver such Subordinated Debt
Securities for authentication, to set the terms of such Subordinated Debt
Securities, to maintain an office or agency in respect of such Subordinated
Debt Securities, to have moneys held for payment in trust, to register the
transfer or exchange of such Subordinated Debt Securities, to deliver such
Subordinated Debt Securities for replacement or to be canceled, to compensate
and indemnify the Trustee and to appoint a successor trustee, and our right to
recover excess money held by the Trustee shall survive until such Subordinated
Debt Securities are no longer outstanding. Thereafter, only our obligations to
compensate and indemnify the Trustee, and our right to recover excess money
held by the Trustee shall survive.
The Subordinated Indenture also provides that, except as otherwise
provided in this paragraph, we
o will be deemed to have paid and will be discharged from the entire
indebtedness and all obligations in respect of a series of Subordinated Debt
Securities, and the provisions of the Subordinated Indenture will no longer be
in effect with respect to such Debt Securities ("legal defeasance"); and
o may omit to comply with any term, provision or condition of the
Subordinated Indenture described above under "--Certain Covenants" and such
omission shall be deemed not to be an Event of Default under the third clause
of the first paragraph of "--Events of Default" with respect to such series of
Subordinated Debt Securities ("covenant defeasance");
provided that the following conditions shall have been satisfied:
o we have irrevocably deposited in trust with the Trustee as trust
funds solely for the benefit of the holders of the Subordinated Debt
Securities of such series, for payment of the principal of and
interest on the Subordinated Debt Securities of such series, money or
U.S. government obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee
and the Defeasance Agent, if any), to pay and discharge the principal
of and interest and premium on, if any, the outstanding Subordinated
Debt Securities of such series to maturity or earlier redemption, as
the case may be;
o no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Subordinated
Debt securities of such series shall have occurred and be continuing
on the date of such deposit;
o we shall have delivered to the Trustee and the Defeasance Agent,
if any, an opinion of counsel to the effect that the holders of the
Subordinated Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of
our exercising our option under this provision of the Subordinated
Indenture and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such option had not been exercised; and
o if the Subordinated Debt Securities are listed on a national
securities exchange, we will deliver to the Trustee and Defeasance
Agent, if any, an opinion of counsel to the effect that the exercise
of the option would not cause such Subordinated Debt Securities to be
delisted from such exchange.
In the case of legal defeasance under the first bullet point above, the opinion
of counsel referred to in clause (1) of the fourth sub-bullet point above shall
be accompanied by a ruling directed to the Trustee received from the Internal
Revenue Service to the same effect. Subsequent to legal defeasance under the
first bullet point above, (1) the holders of the Subordinated Debt Securities
will have an enforceable right to continue to receive from the trust fund
payment of principal of and interest and premium, if any, on the Subordinated
Debt Securities when such payments are due; (2) we will continue to be
obligated to exchange and register transferred securities, and replace
mutilated, destroyed, lost or stolen securities; (3) we will have a right to
recover excess money held by the trust and (4) the Trustee will continue to
have the rights, powers, duties and immunities enumerated in the Subordinated
Indenture.
Governing Law
The Subordinated Indenture and the Subordinated Debt Securities will be
governed by, and construed in accordance with, the internal laws of the State
of New York.
The Trustee
We may have normal banking relationships with the trustee under the
Subordinated Indenture in the ordinary course of business.
DESCRIPTION OF DEBT WARRANTS
We may issue Warrants for the purchase of Debt Securities ("Debt
Warrants") on terms to be determined at the time of sale. We may offer Debt
Warrants separately or together with one or more additional Debt Warrants,
Purchase Contracts or Debt Securities or any combination thereof in the form of
Units, as set forth in the applicable Prospectus Supplement. If we issue Debt
Warrants as part of a Unit, the accompanying Prospectus Supplement will specify
whether such Debt Warrants may be separated from the other securities in such
Unit prior to the Debt Warrants' expiration date. The Debt Warrants offered by
this Prospectus and the accompanying Prospectus Supplement are referred to
herein as the "Offered Debt Warrants."
We will issue the Offered Debt Warrants under one or more Warrant
Agreements (each, a "Warrant Agreement") to be entered into between us and a
bank or trust company, as Warrant agent (the "Warrant Agent"), and may be
issued in one or more series, all as shall be set forth in the Prospectus
Supplement relating thereto. Because the following is only a summary of the
Warrant Agreements and the Debt Warrants, it does not contain all information
that you may find useful. For further information about the Warrant Agreements
and the Debt Warrants, you should read the Warrant Agreements.
General
You should look in the accompanying Prospectus Supplement for the
following terms of the Offered Debt Warrants:
o the specific designation and aggregate number of and the price at
which the Offered Debt Warrants will be issued;
o the designation, aggregate principal amount, currency or composite
currency and terms of the Debt Securities that may be purchased upon exercise
of the Offered Debt Warrants;
o if applicable, the designation and terms of the Debt Securities with
which the Offered Debt Warrants are issued and the number of the Offered Debt
Warrants issued with each of such Debt Securities;
o whether the Offered Debt Warrants are to be sold separately or with
other Offered Securities as part of Units, if applicable, the date on and after
which the Offered Debt Warrants and such Offered Securities will be separately
transferable;
o the principal amount of Debt Securities purchasable upon exercise of
each Offered Debt Warrant, the price at which and the currency or composite
currency in which such principal amount of Debt Securities may be purchased
upon such exercise and the method of such exercise;
o the currency or composite currency for which the Offered Warrants may
be purchased;
o the date on which the right to exercise the Offered Debt Warrants
shall commence and the date on which such right shall expire or, if the Offered
Debt Warrants are not continuously exercisable throughout such period, the
specific date or dates on which they will be exercisable;
o whether any Offered Debt Warrants will be issued in global or
definitive form or both;
o any applicable United States federal income tax consequences;
o the identity of the Warrant Agent in respect of the Offered Debt
Warrants;
o the proposed listing, if any, of the Offered Debt Warrants or the
securities purchasable upon exercise thereof on any securities exchange; and
o any other terms of the Offered Debt Warrants.
Warrants of each series will be evidenced by Warrant Certificates in
registered form, which may be global Warrants or definitive Warrants, as
specified in the applicable Prospectus Supplement. See "Global Securities"
below.
At the option of the holder upon request confirmed in writing, and subject
to the terms of the applicable Warrant Agreement, Warrants in definitive form
may be presented for exchange and for registration of transfer (with the form
of transfer endorsed thereon duly executed) at the corporate trust office of
the Warrant Agent for such series of Debt Warrants (or any other office
indicated in the Prospectus Supplement relating to such series of Debt
Warrants) without service charge and upon payment of any taxes and other
governmental charges as described in such Warrant Agreement. Such transfer or
exchange will be effected only if the Warrant Agent for such series of Debt
Warrants is satisfied with the documents of title and identity of the person
making the request.
Modifications
Each Warrant Agreement and the terms of the Debt Warrants may be amended
by us and the Warrant Agent, without the consent of the holders, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision therein or in any other manner which we may
deem necessary or desirable and which will not adversely affect the interests
of the affected holders in any material respect.
We and any Warrant Agent may also modify or amend each Warrant Agreement
and the terms of the Debt Warrants issued thereunder, with the consent of the
owners of not less than a majority in number of the then outstanding
unexercised Debt Warrants affected, provided that no such modification or
amendment that changes the exercise price of the Debt Warrants, reduces the
amount receivable upon exercise, cancellation or expiration, shortens the
period of time during which the Debt Warrants may be exercised or otherwise
materially and adversely affects the rights of the owners of the Debt Warrants
or reduces the percentage of outstanding Debt Warrants, the consent of whose
owners is required for modification or amendment of the applicable Warrant
Agreement or the terms of the Debt Warrants issued thereunder, may be made
without the consent of the owners affected thereby.
Merger, Consolidation, Sale or Other Disposition
If at any time we merge or consolidate with another entity or transfer
substantially all of our assets as permitted under the applicable Warrant
Agreement, the successor corporation thereunder shall succeed to and assume all
of our obligations under such Warrant Agreement and the Warrant Certificates.
We would then be relieved of any further obligation under such Warrant
Agreement and Debt Warrants.
Enforceability of Rights of Warrantholders; Governing Law
Only holders of Warrant Certificates may enforce their right to exercise
the Debt Warrants evidenced by such Warrant Certificates, in the manner
provided therein and in the applicable Warrant Agreement. The Debt Warrants and
each Warrant Agreement will be governed by, and construed in accordance with,
the laws of the State of New York.
The Debt Warrants are Unsecured Obligations
The Debt Warrants will be unsecured and unsubordinated obligations of ours
and will rank equally with our other unsecured contractual obligations and with
our unsecured and unsubordinated debt. We are a holding company and conduct all
of our operations through subsidiaries. Therefore, our rights and the rights of
our creditors, including Warrant holders, to participate in the distribution of
assets of any subsidiary upon such subsidiary's liquidation or recapitalization
will be subject to the prior claims of such subsidiary's creditors, except to
the extent that we are a creditor with recognized claims against the
subsidiary. In addition, our subsidiaries' ability to pay dividends or make
other payments or advances to us will depend upon their operating results and
will be subject to applicable laws and contractual restrictions.
These contractual restrictions include our subsidiaries' obligations to
pay Comcast Corporation under certain management agreements and programming
contracts. In addition, some of our subsidiaries' loan agreements require them
to maintain financial ratios and cash flow levels and contain restrictions on
their ability to make dividend payments, pay management fees and make advances
to affiliated entities, including us. The Warrant Agreements will not limit our
subsidiaries' ability to enter into other agreements that prohibit or restrict
dividends or other payments or advances to us.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue Purchase Contracts for the purchase or sale of:
o securities of an entity unaffiliated with us, a basket of such
securities, an index or indices of such securities or any combination of the
above as specified in the applicable Prospectus Supplement,
o currencies or composite currencies or
o commodities.
Each Purchase Contract will entitle the holder thereof to purchase or sell, and
obligate us to sell or purchase, on specified dates, such securities,
currencies or commodities at a specified purchase price, all as set forth in
the applicable Prospectus Supplement. We must, however, satisfy our
obligations, if any, with respect to any Purchase Contract by delivering the
cash value thereof or, in the case of underlying currencies, by delivering the
underlying currencies, as set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will also specify the methods by which the
holders may purchase or sell such securities, currencies or commodities and any
acceleration, cancellation or termination provisions or other provisions
relating to the settlement of a Purchase Contract.
Purchase Contracts may require holders to satisfy their obligations
thereunder when the Purchase Contracts are issued ("Pre-paid Purchase
Contracts"). Our obligation to settle the Pre-paid Purchase Contracts on the
relevant settlement date will constitute indebtedness of us. Accordingly, the
Pre-paid Purchase Contracts will be issued under one of the Indentures.
DESCRIPTION OF UNITS
As specified in the applicable Prospectus Supplement, Units will consist
of one or more Purchase Contracts, Debt Warrants, Debt Securities or Guaranteed
Trust Preferred Securities or any combination thereof. Reference is made to the
applicable Prospectus Supplement for:
o all terms of the Units and of the Purchase Contracts, Debt Warrants,
Debt Securities or Guaranteed Trust Preferred Securities, or any combination
thereof, comprising the Units, including whether and under what circumstances
the Securities comprising the Units may or may not be traded separately;
o a description of the terms of any Unit Agreement governing the Units;
and
o a description of the provisions for the payment, settlement, transfer
or exchange of the Units.
DESCRIPTION OF THE GUARANTEED TRUST PREFERRED SECURITIES
Each of our trust subsidiaries may issue, from time to time, only one
series of Guaranteed Trust Preferred Securities along with common securities
having terms described in the Prospectus Supplement relating to the issuance.
The Declaration of each of our trust subsidiaries authorizes the Regular
Trustees of such trust subsidiary to issue on its behalf one series of
Guaranteed Trust Preferred Securities. The Declaration will be qualified as an
indenture under the Trust Indenture Act. The Guaranteed Trust Preferred
Securities will have terms, including distributions, redemption, voting,
liquidation rights and other preferred, deferred or other special rights or
such restrictions as shall be set forth in the Declaration or made part of the
Declaration by the Trust Indenture Act and which will mirror the terms of the
Subordinated Debt Securities held by the trust subsidiary and described in the
Prospectus Supplement. You should look in the Prospectus Supplement for the
specific terms of the Guaranteed Trust Preferred Securities, including:
o the distinctive designation of the Guaranteed Trust Preferred
Securities;
o the number of Guaranteed Trust Preferred Securities issued by our
trust subsidiary;
o the annual distribution rate (or method of determining such rate) for
Guaranteed Trust Preferred Securities issued by our trust subsidiary and the
date or dates upon which such distributions shall be payable; provided,
however, that distributions on the Guaranteed Trust Preferred Securities shall
be payable on a periodic basis to holders of such Guaranteed Trust Preferred
Securities as of a record date in each period during which such Guaranteed
Trust Preferred Securities are outstanding;
o whether distributions on the Guaranteed Trust Preferred Securities
issued by our trust subsidiary will be cumulative, and, in the case of
Guaranteed Trust Preferred Securities having cumulative distribution rights,
the date or dates or method of determining the date or dates from which
distributions on the Guaranteed Trust Preferred Securities issued by our trust
subsidiary shall be cumulative;
o the amount or amounts which shall be paid out of the assets of our
trust subsidiary to the holders of its Guaranteed Trust Preferred Securities
upon its voluntary or involuntary dissolution, winding-up or termination;
o the obligation, if any, of our trust subsidiary to purchase or redeem
Guaranteed Trust Preferred Securities it issues and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, it may purchase or redeem its Guaranteed Trust Preferred Securities in
whole or in part;
o the voting rights, if any, of our trust subsidiary's Guaranteed Trust
Preferred Securities in addition to those required by law, including the number
of votes per Guaranteed Trust Preferred Security and any requirement for the
approval by the holders of Guaranteed Trust Preferred Securities, or of
Guaranteed Trust Preferred Securities issued by one or more of our trust
subsidiaries, or of both, as a condition to specified action or amendments to
the Declaration of our trust subsidiary;
o the terms and conditions, if any, upon which the underlying
Subordinated Debt Securities may be distributed to holders of Guaranteed Trust
Preferred Securities;
o if applicable, any securities exchange upon which the Guaranteed
Trust Preferred Securities shall be listed; and
o any other relevant rights, preferences, privileges, limitations or
restrictions of Guaranteed Trust Preferred Securities not inconsistent with the
Declaration of our trust subsidiary or with applicable law.
We will guarantee all Guaranteed Trust Preferred Securities offered by this
Prospectus hereby to the extent described below under "Description of the
Guaranteed Trust Preferred Securities Guarantees." We will describe certain of
the United States federal income tax considerations applicable to any offering
of Guaranteed Trust Preferred Securities in an accompanying Prospectus
Supplement.
In connection with the issuance of Guaranteed Trust Preferred Securities,
our trust subsidiary will issue one series of its common securities. The
Declaration of each of our trust subsidiaries authorizes its Regular Trustees
to issue on its behalf one series of common securities having terms including
distributions, redemption, voting, liquidation rights or restrictions as shall
be set forth in the Declaration. The terms of the common securities issued by
one of our trust subsidiaries will be substantially identical to the terms of
its Guaranteed Trust Preferred Securities and the common securities will rank
equally, and payments will be made thereon pro rata, with the Guaranteed Trust
Preferred Securities except that, upon an event of default under the
Declaration, the rights of the holders of the common securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Guaranteed
Trust Preferred Securities. Except in certain limited circumstances, the common
securities will also carry the right to vote to appoint, remove or replace any
of our trust subsidiaries' Trustees. We will directly or indirectly own all of
the common securities of each of our trust subsidiaries.
Enforcement of Certain Rights by Holders of Guaranteed Trust Preferred
Securities
If an event of default under the Declaration of one of our trust
subsidiaries (an "Event of Default") occurs and is continuing, then the holders
of its Guaranteed Trust Preferred Securities of such trust subsidiary would
have to rely on the Institutional Trustee enforcing against us its rights as a
holder of the Subordinated Debt Securities. In addition, the holders of a
majority in liquidation amount of the Guaranteed Trust Preferred Securities of
the trust subsidiary will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Institutional
Trustee or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the applicable Declaration, including the right to
direct the Institutional Trustee to exercise the remedies available to it as a
holder of the Subordinated Debt Securities. If the Institutional Trustee fails
to enforce its rights under the Subordinated Debt Securities, a holder of
Guaranteed Trust Preferred Securities may not institute a legal proceeding
directly against us to enforce the Institution Trustee's rights under the
applicable series of subordinated Debt Securities. Notwithstanding the
foregoing, if an Event of Default under the applicable Declaration has occurred
and is continuing and that event is attributable to our failure to pay interest
or principal on the applicable series of Subordinated Debt Securities when due,
then a holder of Guaranteed Trust Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal of or
interest on the applicable series of Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of such holder's
Guaranteed Trust Preferred Securities (a "Direct Action") on or after the
respective due date specified in the applicable series of Subordinated Debt
Securities. In connection with such Direct Action, we will be subrogated to the
rights of such holder of Guaranteed Trust Preferred Securities under the
applicable Declaration to the extent of any payment made by us to such holder
of Preferred Securities in such Direct Action.
DESCRIPTION OF THE GUARANTEED TRUST PREFERRED
SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Guaranteed
Trust Preferred Securities Guarantees that we will execute and deliver for the
benefit of the holders from time to time of the Guaranteed Trust Preferred
Securities. Each Guaranteed Trust Preferred Securities Guarantee will be
qualified as an indenture under the Trust Indenture Act. We will name the
trustee who will act as indenture trustee under each Guaranteed Trust Preferred
Securities Guarantee for purposes of the Trust Indenture Act (the "Preferred
Guarantee Trustee") in the Prospectus Supplement relating to such Guaranteed
Trust Preferred Securities. The terms of each Guaranteed Trust Preferred
Securities Guarantee will be those set forth in such Guaranteed Trust Preferred
Securities Guarantee and those made part of such Guaranteed Trust Preferred
Securities Guarantee by the Trust Indenture Act. Because the following is only
a summary of the Guaranteed Trust Preferred Securities Guarantee, it does not
contain all information that you may find useful. For further information about
the Guaranteed Trust Preferred Securities Guarantee, you should read the
Guaranteed Trust Preferred Securities Guarantee. Each Guaranteed Trust
Preferred Securities Guarantee will be held by the Preferred Guarantee Trustee
for the benefit of the holders of the Guaranteed Trust Preferred Securities of
the relevant trust subsidiary.
General
Pursuant to each Guaranteed Trust Preferred Securities Guarantee, we will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Guaranteed Trust Preferred Securities, the
Guarantee Payments (as described below) (except to the extent paid by our trust
subsidiary), as and when due, regardless of any defense, right of set-off or
counterclaim which such trust subsidiary may have or assert. The following
payments with respect to Guaranteed Trust Preferred Securities to the extent
not paid by such trust subsidiary (the "Guarantee Payments"), will be subject
to the Guaranteed Trust Preferred Securities Guarantee thereon (without
duplication):
o any accrued and unpaid distributions which are required to be paid on
such Guaranteed Trust Preferred Securities, to the extent our trust subsidiary
has funds available for such payment;
o the redemption price, including all accrued and unpaid distributions
(the "Redemption Price"), to the extent such trust subsidiary has funds
available for such payment with respect to any Guaranteed Trust Preferred
Securities called for redemption by such trust subsidiary; and
o upon a voluntary or involuntary dissolution, winding-up or
termination of such trust subsidiary (other than in connection with the
distribution of Subordinated Debt Securities to the holders of Guaranteed Trust
Preferred Securities or the redemption of all of the Guaranteed Trust Preferred
Securities), the lesser of
o the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Guaranteed Trust Preferred Securities to
the date of payment, to the extent such trust subsidiary has funds
available therefor; and
o the amount of assets of such trust subsidiary remaining
available for distribution to holders of such Guaranteed Trust
Preferred Securities in liquidation of such trust subsidiary.
The redemption price and liquidation amount will be fixed at the time the
Guaranteed Trust Preferred Securities are issued. Our obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
us to the holders of Guaranteed Trust Preferred Securities or by our causing
our trust subsidiary to pay such amounts to such holders.
No Guaranteed Trust Preferred Securities Guarantee will apply to any
payment of distributions except to the extent our trust subsidiary has funds
available for such payment. If we do not make interest payments on the
Subordinated Debt Securities purchased by our trust subsidiary, it will not pay
distributions on its Guaranteed Trust Preferred Securities and will not have
funds available to make such payment. See "Description of the Subordinated Debt
Securities -- Certain Covenants." The Guaranteed Trust Preferred Securities
Guarantee, when taken together with our obligations under the Subordinated Debt
Securities, the Subordinated Indenture and the Declaration, including our
obligations to pay costs, expenses, debts and liabilities of our trust
subsidiaries (other than with respect to the Guaranteed Trust Preferred
Securities and related common securities), is equivalent to a full and
unconditional guarantee on a subordinated basis by us of payments due on the
Guaranteed Trust Preferred Securities.
Certain Covenants
In each Guaranteed Trust Preferred Securities Guarantee, we will covenant
that, so long as any Guaranteed Trust Preferred Securities issued by the
applicable trust subsidiary remain outstanding, if there shall have occurred
any event that would constitute an event of default under such Guaranteed Trust
Preferred Securities Guarantee or under our trust subsidiary's Declaration,
then:
o we may not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase or make liquidation payment with respect to,
any of our capital stock (other than (i) purchases or acquisitions of shares of
our Common Stock in connection with the satisfaction of our obligations under
any employee benefit plans or the satisfaction of our obligations pursuant to
any contract or security requiring us to purchase shares of our Common Stock,
(ii) as a result of a reclassification of our capital stock or the exchange or
conversion of one our class or series of capital stock for another of our class
or series of capital stock or, (iii) the purchase of fractional interests in
shares of our capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing and
o we may not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by us which rank equally with or junior to such Subordinated
Debt Securities.
Modification of the Guaranteed Trust Preferred
Securities Guarantees; Assignment
Except with respect to any changes which do not adversely affect the
rights of holders of Guaranteed Trust Preferred Securities (in which case no
vote will be required), each Guaranteed Trust Preferred Securities Guarantee
may be amended only with the prior approval of the holders of not less than a
majority in liquidation amount of our trust subsidiary's outstanding Guaranteed
Trust Preferred Securities. The manner of obtaining any such approval of
holders of such Guaranteed Trust Preferred Securities will be set forth in an
accompanying Prospectus Supplement. All guarantees and agreements contained in
a Guaranteed Trust Preferred Securities Guarantee shall bind our successors,
assigns, receivers, trustees and representatives and shall inure to the benefit
of the holders of our trust subsidiary's then outstanding Guaranteed Trust
Preferred Securities.
Termination
Each Guaranteed Trust Preferred Securities Guarantee will terminate as to
the Guaranteed Trust Preferred Securities issued by the applicable trust
subsidiary:
o upon full payment of the Redemption Price of all its Guaranteed Trust
Preferred Securities;
o upon distribution of the Subordinated Debt Securities held by it to
the holders of its Guaranteed Trust Preferred Securities; or
o upon full payment of the amounts payable in accordance with its
Declaration upon its liquidation.
Each Guaranteed Trust Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of Guaranteed Trust Preferred Securities issued by the applicable trust
subsidiary must restore payment of any sums paid under such Guaranteed Trust
Preferred Securities or such Preferred Securities Guarantee.
Events of Default
An event of default under a Preferred Securities Guarantee will occur upon
our failure to perform any of our payment or other obligations under the
guarantee.
The holders of a majority in liquidation amount of the Preferred
Securities relating to such Guaranteed Trust Preferred Securities Guarantee
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of the Guaranteed Trust Preferred Securities Guarantee or to direct the
exercise of any trust or power conferred upon the Preferred Guarantee Trustee
under such Guaranteed Trust Preferred Securities. If the Preferred Guarantee
Trustee fails to enforce such Guaranteed Trust Preferred Securities Guarantee,
any holder of Guaranteed Trust Preferred Securities relating to such Guaranteed
Trust Preferred Securities Guarantee may institute a legal proceeding directly
against us to enforce the Preferred Guarantee Trustee's rights under such
Guaranteed Trust Preferred Securities Guarantee, without first instituting a
legal proceeding against the relevant trust subsidiary, the Preferred Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, if we
have failed to make a guarantee payment, a holder of Guaranteed Trust Preferred
Securities may directly institute a proceeding against us for enforcement of
the Guaranteed Trust Preferred Securities Guarantee for such payment. We waive
any right or remedy to require that any action be brought first against our
trust subsidiary or any other person or entity before proceeding directly
against us.
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Guaranteed Trust Preferred Securities Guarantee, undertakes to
perform only such duties as are specifically set forth in such Guaranteed Trust
Preferred Securities Guarantee and, after default, shall exercise the same
degree of care as a prudent individual would exercise in the conduct of his or
her own affairs. Subject to such provisions, the Preferred Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by a Guaranteed
Trust Preferred Securities Guarantee at the request of any holder of Guaranteed
Trust Preferred Securities, unless offered reasonable indemnity against the
costs, expenses and liabilities which might be incurred thereby.
Status of the Preferred Securities Guarantees
The Guaranteed Trust Preferred Securities Guarantees will constitute
unsecured obligations of ours and will rank (i) subordinate and junior in right
of payment to all of our other liabilities, (ii) equally with the most senior
preferred or preference stock now or in the future issued by us and with any
guarantee now or in the future entered into by us in respect of any preferred
or preference stock of any of our affiliates, and (iii) senior to our common
stock. The terms of the Guaranteed Trust Preferred Securities provide that each
holder of Guaranteed Trust Preferred Securities issued by the applicable trust
subsidiary by accepting the Guaranteed Trust Preferred Securities agrees to the
subordination provisions and other terms of the Guaranteed Trust Preferred
Securities Guarantee relating to the Guaranteed Trust Preferred Securities.
The Guaranteed Trust Preferred Securities Guarantees will constitute a
guarantee of payment and not of collection (that is, the guaranteed party may
institute a legal proceeding directly against us, as guarantor, to enforce its
rights under the Preferred Securities Guarantee without instituting a legal
proceeding against any other person or entity).
Information Concerning the Preferred Guarantee
Trustee
We and certain of our affiliates maintain a banking relationship with the
Preferred Guarantee Trustee.
Governing Law
The Guaranteed Trust Preferred Securities Guarantees will be governed by
and construed in accordance with the internal laws of the State of New York.
GLOBAL SECURITIES
We may issue the Debt Securities, Debt Warrants, Purchase Contracts,
Guaranteed Trust Preferred Securities and Units of any series in the form of
one or more fully registered global securities (a "Global Security") that will
be deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of the Depositary or its nominee. In that case, one or
more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal or face amount of
outstanding registered securities of the series to be represented by such
Global Securities. Unless and until the Depositary exchanges a Global Security
in whole for securities in definitive registered form, the Global Security may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any of its nominees to a
successor of the Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of securities to be represented by a Global Security will
be described in the Prospectus Supplement relating to such series. We
anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary for such Global Security
("participants") or persons that may hold interests through participants. Upon
the issuance of a Global Security, the Depositary for such Global Security will
credit, on its book-entry registration and transfer system, the participants'
accounts with the respective principal or face amounts of the securities
represented by such Global Security beneficially owned by such participants.
The accounts to be credited shall be designated by any dealers, underwriters or
agents participating in the distribution of such securities. Ownership of
beneficial interests in such Global Security will be shown on, and the transfer
of such ownership interests will be effected only through, records maintained
by the Depositary for such Global Security (with respect to interests of
participants) and on the records of participants (with respect to interests of
persons holding through participants). The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the securities
represented by such Global Security for all purposes under the applicable
Indenture, Warrant Agreement, Purchase Contract, Declaration or Unit Agreement.
Except as set forth below, owners of beneficial interests in a Global Security
will not be entitled to have the securities represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of such securities in definitive form and will not be considered the
owners or holders thereof under the applicable Indenture, Warrant Agreement,
Purchase Contract, Declaration or Unit Agreement. Accordingly, each person
owning a beneficial interest in a Global Security must rely on the procedures
of the Depositary for such Global Security and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the applicable
Indenture, Warrant Agreement, Purchase Contract, Declaration or Unit Agreement.
We understand that under existing industry practices, if we request any action
of holders or if an owner of a beneficial interest in a Global Security desires
to give or take any action which a holder is entitled to give or take under the
applicable Indenture, Warrant Agreement, Purchase Contract, Declaration or Unit
Agreement, the Depositary for such Global Security would authorize the
participants holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt Securities, and
any payments to holders with respect to Debt Warrants, Purchase Contracts,
Preferred Securities or Units, represented by a Global Security registered in
the name of a Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Global Security.
None of us, the Trustees, the Warrant Agents, the Unit Agents or any of our
other agents, agent of the Trustees or agent of the Warrant Agents or Unit
Agents will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in
such Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
We expect that the Depositary for any Securities represented by a Global
Security, upon receipt of any payment of principal, premium, interest or other
distribution of underlying securities or commodities to holders in respect of
such Global Security, will immediately credit participants' accounts in amounts
proportionate to their respective beneficial interests in such Global Security
as shown on the records of such Depositary. We also expect that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing customer instructions
and customary practices, as is now the case with the securities held for the
accounts of customers in bearer form or registered in "street name," and will
be the responsibility of such participants.
If the Depositary for any Securities represented by a Global Security is
at any time unwilling or unable to continue as Depositary or ceases to be a
clearing agency registered under the Exchange Act, and we do not appoint a
successor Depositary registered as a clearing agency under the Exchange Act
within 90 days, we will issue such Securities in definitive form in exchange
for such Global Security. In addition, we may at any time and in our sole
discretion determine not to have any of the Securities of a series represented
by one or more Global Securities and, in such event, will issue Securities of
such series in definitive form in exchange for all of the Global Security or
Securities representing such Securities. Any securities issued in definitive
form in exchange for a Global Security will be registered in such name or names
as the Depositary shall instruct the relevant Trustee, Warrant Agent or other
relevant agent of ours. We expect that such instructions will be based upon
directions received by the Depositary from participants with respect to
ownership of beneficial interests in such Global Security.
PLAN OF DISTRIBUTION
We and/or our trust subsidiaries may sell the Securities being offered
hereby in four ways:
o directly to purchasers;
o through agents;
o through underwriters; and
o through dealers.
We and/or our trust subsidiaries may directly solicit offers to purchase
Securities, or we and/or our trust subsidiaries may designate agents to solicit
such offers. We will, in the Prospectus Supplement relating to such offering,
name any agent that could be viewed as an underwriter under the Securities Act
of 1933 and describe any commissions we or our trust subsidiaries must pay. Any
such agent will be acting on a best efforts basis for the period of its
appointment or, if indicated in the applicable Prospectus Supplement, on a firm
commitment basis. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for us in the ordinary course of
business.
If any underwriters are utilized in the sale of the Securities in respect
of which this Prospectus is delivered, we will enter into an underwriting
agreement with them at the time of sale to them and we will set forth in the
Prospectus Supplement relating to such offering their names and the terms of
our agreement with them.
If a dealer is utilized in the sale of the Securities in respect of which
the Prospectus is delivered, we will sell such Securities to the dealer, as
principal. The dealer may then resell such Securities to the public at varying
prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements which they may enter into with us to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act of
1933, and may be customers of, engage in transactions with or perform services
for us in the ordinary course of business.
If we so indicate in the Prospectus Supplement, we will authorize agents,
underwriters or dealers to solicit offers by certain purchasers to purchase
Offered Debt Securities or Offered Debt Warrants, Purchase Contracts or Units,
as the case may be, from us at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to only those conditions set forth in the Prospectus Supplement, and
the Prospectus Supplement will set forth the commission payable for
solicitation of such offers.
In order to facilitate the offering of the Securities, any underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the Securities or any other securities the prices of which may be used
to determine payments on such securities. Specifically, any underwriters may
overallot in connection with the offering, creating a short position for their
own accounts. In addition, to cover overallotments or to stabilize the price of
the Securities or of any such other securities, the underwriters may bid for,
and purchase, the Securities or any such other securities in the open market.
Finally, in any offering of the Securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed Securities in transactions to
cover syndicate short positions, in stabilization transactions or otherwise.
Any of these activities may stabilize or maintain the market price of the
Securities above independent market levels. Any such underwriters are not
required to engage in these activities, and may end any of these activities at
any time.
Any underwriter, agent or dealer utilized in the initial offering of
Securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
LEGAL MATTERS
Davis Polk & Wardwell will pass upon the validity of the Securities on our
behalf and on behalf of our trust subsidiaries, although we may use other
counsel (including our employees) to do so. Certain matters of Delaware law
relating to the validity of the Guaranteed Trust Preferred Securities will be
passed upon by Richards, Layton & Finger.
EXPERTS
Our consolidated financial statements and consolidated financial statement
schedules in our Annual Report on Form 10-K for the year ended December 31, 1997
have been audited by Deloitte & Touche LLP, independent auditors, as set forth
in their reports thereon and incorporated herein by reference.
Such consolidated financial statements and consolidated financial statement
schedules have been incorporated herein by reference in reliance upon the
reports of such firm given upon their authority as experts in accounting and
auditing.
GLOSSARY
"Debt Securities" means the Senior Debt Securities or the Subordinated
Debt Securities.
"Debt Warrants" means warrants to purchase our Debt Securities.
"Declaration" means the Declaration of Trust relating to our trust
subsidiaries, until the issuance of Guaranteed Trust Preferred Securities by
any such trust subsidiary, and thereafter to the Amended and Restated
Declaration of Trust providing for the issuance of such Guaranteed Trust
Preferred Securities under the Delaware Business Trust Act.
"Guaranteed Trust Preferred Securities" means a class of preferred
securities representing undivided beneficial interest in the assets of one of
our trust subsidiaries with terms as set forth in the applicable Prospectus
Supplement.
"Guaranteed Trust Preferred Securities Guarantee" means our guarantee
agreement in respect of the preferred securities issued by one of our trust
subsidiaries.
"Indentures" means the Senior Indenture and the Subordinated Indenture.
"Purchase Contracts" means purchase contracts for the purchase or sale of
securities of an entity unaffiliated with us, a basket of such securities, an
index or indices of such securities or any combination of the above as
specified in the applicable Prospectus Supplement, currencies or composite
currencies or commodities.
"Securities" means any of our Debt Securities, Debt Warrants, Guaranteed
Trust Preferred Securities, Purchase Contracts or Units offered to you pursuant
to the terms of the applicable Prospectus Supplement.
"Senior Debt Securities" means our debt securities issued under the terms
of the Senior Indenture.
"Senior Indenture" means the indenture dated as of May 1, 1997 between us
and the Bank of Montreal Trust Company, as Trustee.
"Subordinated Debt Securities" means our debt securities issued under the
terms of the Subordinated Indenture.
"Subordinated Indenture" means the indenture between us and the Trustee
under such indenture, which we will name in the applicable Prospectus
Supplement.
"Units" means one or more of our Debt Securities, Debt Warrants,
Guaranteed Trust Preferred Securities or Purchase Contracts or any combination
thereof offered to you pursuant to the terms of the applicable Prospectus
Supplement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The estimated expenses payable in connection with the offering described
in this Registration Statement (other than underwriting discounts and
commissions) are set forth below. All amounts shown are estimates, except the
SEC registration fee.
SEC registration fee.................................................$ 278,000
Printing and engraving expenses...................................... 100,000
Accounting fees and expenses......................................... 25,000
Legal fees and expenses.............................................. 75,000
Miscellaneous........................................................ 22,000
---------
Total.............................................................$ 500,000
=========
ITEM 15. Indemnification of Directors and Officers
The Company is a corporation organized under the General Corporation Law
of the State of Delaware.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification may be
made in respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine that despite the adjudication of liability but in view
of all the circumstances of the case such person is fairly and reasonably
entitled to indemnify for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) or (b) or in the
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification or advancement of expenses provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; and empowers the corporation to purchase
and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by him
in any such capacity or arising out of his status as such whether or not the
corporation would have the power to indemnify him against such liabilities
under Section 145.
Section 7-1 of the Company's By-Laws provides that the Company will
indemnify any director or officer of the Company or any director or officer who
is or was serving at the request of the Company as a director, officer,
employee or agent of another Company, partnership, joint venture, trust or
other enterprise (any such person is hereinafter referred to as a "director or
officer") against expenses (including, but not limited to, attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by such director or officer, to the fullest extent now or hereafter
permitted by law in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), brought or threatened to be brought against
such director or officer by reason of the fact that he or she is or was serving
in any such capacity or in any other capacity on behalf of the Company, its
parent or any of its subsidiaries.
Section 7-2 of the Company's By-Laws provides that expenses incurred by
any director or officer in defending a Proceeding will be paid by the Company
in advance of the final disposition of such Proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking, by or
on behalf of such director or officer, to repay such amount without interest if
it is ultimately determined that he or she is not entitled to be indemnified by
the Company as authorized by law.
Section 7-4 of the Company's By-Laws provides that the Company may
purchase and maintain insurance on behalf of any person who is or was a
director or officer of the Company against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Company would have the power to
indemnify him or her against such liability under law.
ITEM 16. Exhibits
1.1** Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2** Form of Underwriting Agreement (Preferred Securities).
4.1 Senior Debt Securities Indenture dated as of May 1, 1997,
between Comcast Cable Communications, Inc. and Bank of Montreal
Trust Company, as Trustee (incorporated by reference to Exhibit
4.1(a) to the Registration Statement on Form S-4 of the Company
(File No. 333-30745)).
4.2** Form of Subordinated Debt Securities Indenture.
4.3** Form of Supplemental Indenture to be used in connection with
the issuance of Junior Subordinated Debt Securities and
Preferred Securities.
4.4** Certificate of Trust of Comcast Cable Trust I.
4.5** Certificate of Trust of Comcast Cable Trust II.
4.6** Certificate of Trust of Comcast Cable Trust III.
4.7** Declaration of Trust of Comcast Cable Trust I.
4.8** Declaration of Trust of Comcast Cable Trust II.
4.9** Declaration of Trust of Comcast Cable Trust III.
4.10** Form of Amended and Restated Declaration of Trust for each of
Comcast Cable Trust I, Comcast Cable Trust II and Comcast Cable
Trust III.
4.11 Form of Senior Debt Security (included in Exhibit 4.1).
4.12 Form of Subordinated Debt Security (included in Exhibit 4.2).
4.13 Form of Preferred Security (included in Exhibit 4.10).
4.14** Form of Preferred Securities Guarantee with respect to
Preferred Securities.
4.15 Form of Purchase Contract Agreement relating to Purchase
Contracts (included in Exhibit 4.16).
4.16** Form of Unit Agreement.
4.17** Form of Debt Warrant Agreement for Warrants Sold Alone.
4.18 Form of Debt Warrant for Warrants Sold Alone (included in
Exhibit 4.17).
4.19** Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities.
4.20 Form of Debt Warrant for Warrants Sold Attached to Debt
Securities (included in Exhibit 4.19).
4.21** Form of Pledge Agreement.
5.1** Opinion of Davis Polk & Wardwell.
5.2** Opinion of Richards, Layton & Finger.
12.1** Statement re: Computation of Ratios of Earnings to Fixed
Charges.
23.1** Consent of Deloitte & Touche LLP.
23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger (included in Exhibit 5.2).
24.1 Powers of Attorney (included on the signature pages hereto).
25.1** Statement of eligibility under the Trust Indenture Act of 1939,
as amended, of Bank of Montreal, as Trustee under the Senior
Debt Securities Indenture.
25.2* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Trustee under the Subordinated Debt
Securities Indenture.
25.3* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust I.
25.4* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust II.
25.5* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust III.
- -------------------
*To be filed with subsequent Current Report on Form 8-K.
**Filed herewith.
ITEM 17. Undertakings
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933,
as amended (the "Securities Act"); (ii) To reflect in the prospectus any
facts or events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; (iii) To include any
material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement:
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the
Companies annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrants pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrants will,
unless in the opinion of their counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by them is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned Registrants hereby undertake to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Comcast Cable
Communications, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wilmington and State of
Delaware on November 2, 1998.
COMCAST CABLE COMMUNICATIONS, INC.
By: /s/ W. E. Dordelman
------------------------------------
Name: William E. Dordelman
Title: Vice President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Ralph J. Roberts, Brian L. Roberts,
Julian A. Brodsky, Lawrence S. Smith, John R. Alchin, Stanley L. Wang and
Arthur R. Block and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective
amendments), as well as any related registration statement for amendment
thereto) filed pursuant to Rule 462 promulgated under the Securities Act of
1433, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys- in-fact
and agents, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts each of
which shall be deemed an original, but which taken together shall constitute
one instrument.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Ralph J. Roberts Chairman of the Board of Directors;
- --------------------------------------------------- Director November 2, 1998
Ralph J. Roberts
/s/ Julian A. Brodsky Vice Chairman; Director November 2, 1998
- ---------------------------------------------------
Julian A. Brodsky
/s/ Brian L. Roberts Vice Chairman; Director (Principal November 2, 1998
- --------------------------------------------------- Executive Officer)
Brian L. Roberts
/s/ Lawrence S. Smith Executive Vice President (Principal November 2, 1998
- --------------------------------------------------- Accounting Officer)
Lawrence S. Smith
/s/ John R. Alchin Senior Vice President and Treasurer November 2, 1998
- --------------------------------------------------- (Principal Financial Officer)
John R. Alchin
/s/ Stanley L. Wang Senior Vice President and Secretary; November 2, 1998
- --------------------------------------------------- Director
Stanley L. Wang
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Comcast Cable
Trust I, Comcast Cable Trust II and Comcast Cable III certify that they have
reasonable grounds to believe that they meet all of the requirements for filing
on Form S-3 and that they have duly caused this Registration Statement or
amendment thereto to be signed on their behalf by the undersigned, thereunto
duly authorized, in the City of Newark, State of Delaware, and the City of
Philadelphia, State of Pennsylvania, on November 2, 1998.
COMCAST CABLE TRUST I
By: /s/ Donald J. Puglisi
------------------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ W. E. Dordelman
------------------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CABLE TRUST II
By: /s/ Donald J. Puglisi
------------------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ W. E. Dordelman
------------------------------------------
Name: William E. Dordelman
Title: Trustee
COMCAST CABLE TRUST III
By: /s/ Donald J. Puglisi
------------------------------------------
Name: Donald J. Puglisi
Title: Trustee
By: /s/ W. E. Dordelman
------------------------------------------
Name: William E. Dordelman
Title: Trustee
EXHIBIT INDEX
1.1** Form of Underwriting Agreement (Debt Securities, Warrants,
Purchase Contracts and Units).
1.2** Form of Underwriting Agreement (Preferred Securities).
4.1 Senior Debt Securities Indenture dated as of May 1, 1997,
between Comcast Cable Communications, Inc. and Bank of Montreal
Trust Company, as Trustee (incorporated by reference to Exhibit
4.1(a) to the Registration Statement on Form S-4 of the Company
(File No. 333-30745)).
4.2** Form of Subordinated Debt Securities Indenture.
4.3** Form of Supplemental Indenture to be used in connection with
the issuance of Junior Subordinated Debt Securities and
Preferred Securities.
4.4** Certificate of Trust of Comcast Cable Trust I.
4.5** Certificate of Trust of Comcast Cable Trust II.
4.6** Certificate of Trust of Comcast Cable Trust III.
4.7** Declaration of Trust of Comcast Cable Trust I.
4.8** Declaration of Trust of Comcast Cable Trust II.
4.9** Declaration of Trust of Comcast Cable Trust III.
4.10** Form of Amended and Restated Declaration of Trust for each of
Comcast Cable Trust I, Comcast Cable Trust II and Comcast Cable
Trust III.
4.11 Form of Senior Debt Security (included in Exhibit 4.1).
4.12 Form of Subordinated Debt Security (included in Exhibit 4.2).
4.13 Form of Preferred Security (included in Exhibit 4.10).
4.14** Form of Preferred Securities Guarantee with respect to
Preferred Securities.
4.15 Form of Purchase Contract Agreement relating to Purchase
Contracts (included in Exhibit 4.16).
4.16** Form of Unit Agreement.
4.17** Form of Debt Warrant Agreement for Warrants Sold Alone.
4.18 Form of Debt Warrant for Warrants Sold Alone (included in
Exhibit 4.17).
4.19** Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities.
4.20 Form of Debt Warrant for Warrants Sold Attached to Debt
Securities (included in Exhibit 4.19).
4.21** Form of Pledge Agreement.
5.1** Opinion of Davis Polk & Wardwell.
5.2** Opinion of Richards, Layton & Finger.
12.1** Statement re: Computation of Ratios of Earnings to Fixed
Charges.
23.1** Consent of Deloitte & Touche LLP.
23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger (included in Exhibit 5.2).
24.1 Powers of Attorney (included on the signature pages hereto).
25.1** Statement of eligibility under the Trust Indenture Act of 1939,
as amended, of Bank of Montreal, as Trustee under the Senior
Debt Securities Indenture.
25.2* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Trustee under the Subordinated Debt
Securities Indenture.
25.3* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust I.
25.4* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust II.
25.5* Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of the Institutional Trustee for Comcast Cable
Trust III.
- -------------------
*To be filed with subsequent Current Report on Form 8-K.
**Filed herewith.
Exhibit 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
_____________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $ aggregate principal amount of %
Notes Due (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate principal amount
of the Offered Securities set forth below opposite their names at a purchase
price of , plus accrued interest, if any, from to the
date of payment and delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
______________
Total.............................................
==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated [_____], 1998, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Comcast Cable Communications, Inc. Underwriting Agreement
Standard Provisions (Debt Securities, Warrants, Purchase Contracts and Units)
dated [_____], 1998 (the "Standard Provisions"), a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_________________________]
By:_________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:_____________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Warrants)
__________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell [number and title of warrants] Warrants (the
"Offered Securities"). The Offered Securities are to be issued pursuant to
the provisions of a Warrant Agreement (the "Warrant Agreement") dated as of [
] between the Company and [name of Warrant Agent], as
Warrant Agent.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
______________
Total...............................................
==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated [_____], 1998, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day:
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Comcast Cable Communications, Inc., Underwriting Agreement
Standard Provisions (Debt Securities, Warrants, Purchase Contracts and Units)
dated [_____], 1998 (the "Standard Provisions"), a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_______________________________]
By:_________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:_________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
__________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell [number and title of purchase contracts] Purchase
Contracts (the "Offered Securities"). The Offered Securities are to be issued
pursuant to the provisions of the [Senior Debt Indenture] [Subordinated Debt
Indenture].
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
______________
Total......
==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated [_____], 1998, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Comcast Cable Communications, Inc. Underwriting Agreement
Standard Provisions (Debt Securities, Warrants, Purchase Contracts and Units)
dated [_____], 1998 (the "Standard Provisions"), a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_________________________]
By:____________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:____________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Units)
__________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell [number and title of units] Units (the "Offered
Securities") consisting of [$ aggregate principal amount of %
Notes Due ] [number and title of Warrants] [number and title of
Purchase Contracts]. The Offered Securities are to be issued pursuant to the
provisions of a Unit Agreement (the "Unit Agreement") dated as of [
] among the Company, [_________________], as Agent, and the holders
from time to time of the Units. [The Notes included in the Offered Securities
will be issued pursuant to the [specify the indenture].] [The Warrants
included in the Offered Securities will be issued pursuant to the [specify the
warrant agreement.]] [The Purchase Contracts included in the Offered
Securities will be issued pursuant to the Unit Agreement.]
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
, plus accrued interest, if any, from to the date of payment and
delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
______________
Total......
==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on
199_, or at such other time, not later than 5:00 p.m. (New York time) on
199_, as shall be designated by us. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated [_____], 1998, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Currency in which exercise payments shall be made:
[Maximum number of Warrants exercisable on any day:]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts:
[Purchase][Sale] Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Comcast Cable Communications, Inc. Underwriting Agreement
Standard Provisions (Debt Securities, Warrants, Purchase Contracts and Units)
dated [_____], 1998 (the "Standard Provisions"), a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein, except that (i) if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control, (ii) all references in such document to a type of security that is
not an Offered Security shall not be deemed to be a part of this Agreement and
(iii) all references in such document to a type of agreement that has not been
entered into in connection with the transactions contemplated hereby shall not
be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________________________]
By:____________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:______________________________
Name:
Title:
COMCAST CABLE COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
[_____], 1998
From time to time, Comcast Cable Communications, Inc., a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this Agreement.
Terms defined in the Underwriting Agreement are used herein as therein
defined.
The Company proposes to issue from time to time (a) its debt
securities ("Debt Securities"), (b) warrants to purchase Debt Securities
("Warrants") and (c) purchase contracts ("Purchase Contracts") requiring the
holders thereof to purchase or sell (i) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or composite
currencies or (iii) commodities. Debt Securities, Purchase Contracts and
Warrants or any combination thereof may be offered in the form of Units
("Units"). As used herein, the term "Debt Securities" includes prepaid
Purchase Contracts.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities, Warrants, Purchase Contracts and Units
(collectively, the "Securities") and has filed with, or transmitted for filing
to, or shall promptly after the date of the Underwriting Agreement file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"), specifically relating to the
Securities offered pursuant to this Agreement (the "Offered Securities"). The
term Registration Statement means the registration statement as amended to the
date of the Underwriting Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the Prospectus Supplement. The term
preliminary prospectus means a preliminary prospectus supplement specifically
relating to the Offered Securities, together with the Basic Prospectus. As
used herein, the terms "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement", "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"). If the Company has filed an
abbreviated registration statement to register additional Debt Securities and
Debt Warrants pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The term "Contract Securities" means the Offered Securities, if
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, each
part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will
comply, in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply
to statements or omissions in the Registration Statement or the Prospectus
based upon information concerning any Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use
therein or to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the trustees referred to in the
Registration Statement.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) Each of the Indenture dated as of May 1, 1997, the "Senior
Debt Indenture"), and the Subordinated Debt Indenture dated as of [_____],
1998, the "Subordinated Debt Indenture"), has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at
law.
(g) The Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(h) The Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(i) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
relevant Indenture, the Warrant Agreement and the Unit Agreement, as the
case may be, and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with
the terms of the Delayed Delivery Contracts, in the case of Contract
Securities, and upon exercise of the Warrants pursuant to the Warrant
Agreement, in the case of Warrant Securities, will be entitled to the
benefits of the relevant Indenture, the Warrant Agreement, and the Unit
Agreement, as the case may be, and will be valid and legally binding
obligations of the Company, in each case enforceable in accordance with
their respective terms except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(j) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their respective
terms except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and is subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Delayed Delivery Contracts, the Warrant Agreement and the
Unit Agreement, if any, will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any of its consolidated subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, the Senior Debt Indenture, the Subordinated Debt
Indenture, the Offered Securities, any Delayed Delivery Contract, the
Warrant Agreement and the Unit Agreement, if any, except such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities; provided,
however, that no representation is made as to whether the purchase of the
Offered Securities constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto effected subsequent to the date of the Underwriting Agreement).
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its consolidated subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole.
(o) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(p) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides
for sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in proportion to the amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement,
except to the extent that the Manager determines that such reduction shall be
applied in other proportions and so advises the Company; provided, however,
that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made to
the Company in Federal or other funds immediately available in New York
City at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such names and
in such denominations as the Manager shall request in writing not less than
one full business day prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its consolidated
subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements
thereto effected subsequent to the execution and delivery of
the Underwriting Agreement), that, in the judgment of the
Manager, is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in
the Prospectus; and
(iii) the Manager shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
clause (i) above and to the effect that the representations
and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed
or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel to the Company, dated the Closing
Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with the power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) each of the Senior Debt Indenture and the Subordinated
Debt Indenture has been duly qualified under the Trust
Indenture Act and (assuming the due execution and delivery
thereof by the Trustee) is a valid and binding agreement of
the Company, enforceable in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law;
(iv) the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and
(assuming the due execution and delivery thereof by the
Warrant Agent) is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law;
(v) the Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company and (assuming the due
execution and delivery thereof by the Agent) is a valid and
binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and is subject to general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law;
(vi) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the relevant Indenture, the Warrant Agreement
and the Unit Agreement, as the case may be, and delivered to
and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts,
in the case of the Contract Securities and upon exercise of
the Warrants pursuant to the Warrant Agreement, in the case
of Warrant Securities, will be entitled to the benefits of
the relevant Indenture, the Warrant Agreement and the Unit
Agreement, as the case may be, and will be valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law;
(vii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and
(assuming the due execution and delivery thereof by the
institutional investors party thereto) are valid and binding
agreements of the Company enforceable in accordance with
their respective terms except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and is subject to general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Senior Debt Indenture, the Subordinated Debt
Indenture, the Offered Securities, any Delayed Delivery
Contracts, the Warrant Agreement and the Unit Agreement, if
any, will not contravene any provisions of applicable law or
the certificate of incorporation or by-laws of the Company
and will not contravene any provision of applicable law of
the United States (except with respect to laws relating
specifically to the cable communications industry, as to
which such counsel is not called upon to express any
opinion) or New York; and no consent, approval or
authorization or order of or qualification with any
governmental body or agency of the United States (except any
consents, approvals, authorizations, orders, registrations
or qualifications relating specifically to the cable
communications industry, as to which such counsel is not
called upon to express any opinion) is required for the
performance by the Company of its obligations under this
Agreement, the Senior Debt Indenture, the Subordinated Debt
Indenture, the Offered Securities, any Delayed Delivery
Contracts, the Warrant Agreement and the Unit Agreement, if
any, except such as may be required by the securities or
blue sky laws of the various states in connection with the
offer and sale of the Offered Securities;
(ix) the statements (1) in the Prospectus under the
captions "Description of the Senior Debt Securities and
Subordinated Debt Securities", "Description of Debt
Warrants", "Description of Purchase Contracts", "Description
of Units" and "Plan of Distribution", (2) in the
Registration Statement under Item 15, in each case insofar
as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein,
fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(x) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated
by reference in the Registration Statement and the
Prospectus (except as to financial statements and schedules
included therein as to which such counsel need not express
any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (2) has
no reason to believe that any part of the Registration
Statement (except as to financial statements and schedules
included therein, as to which such counsel need not express
any belief, and except for that part of the Registration
Statement that constitutes Forms T-1), on the date such part
became effective contained, and the Registration Statement
(except as to financial statements and schedules included
therein, as to which such counsel need not express any
belief, and except for the part of the Registration
Statement that constitutes Forms T-1) as of the date such
opinion is delivered contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus (except as to
financial statements and schedules included therein, as to
which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (4) has no reason to believe that the
Prospectus (except as to financial statements and schedules
included therein as to which such counsel need not express
any belief) as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The Manager shall have received on the Closing Date an
opinion of Arthur R. Block, Esquire, Senior Deputy General Counsel of the
Company (or Thomas R. Nathan, Esquire, Deputy General Counsel of the
Company), dated the Closing Date, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as
to require such qualification (except where the failure to
so qualify would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole) (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officer of the Company;
provided that such counsel shall state that he believes that
both you and he are justified in relying upon such opinions
and certificates);
(ii) Each subsidiary listed on Schedule II hereto, which
subsidiaries constitute all of the material subsidiaries of
the Company (the "Material Subsidiaries"), has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and all of the issued shares of capital stock
of each such Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares and except as
otherwise set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of maters of
fact upon certificates of officer of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon
such opinions and certificates);
(iii) To the best of such counsel's knowledge and other
than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a
whole; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) The Company and its subsidiaries have good and
marketable title in fee simple to all real property owned by
them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus
or such as would not have material adverse effect on the
Company and its subsidiaries, taken as a whole (in giving
the opinion in this clause, such counsel may state that no
examination of record titles for the purpose of such opinion
has been made, and that they are relying upon a general
review of the titles of the Company and its subsidiaries,
upon opinions of local counsel and abstracts, reports and
policies of title companies rendered or issued at or
subsequent to the time of acquisition of such property by
the Company or its subsidiaries, upon opinions of counsel to
the lessors of such property and, in respect of matters of
fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon
such opinions, abstracts, reports, policies and
certificates);
(v) Neither the Company nor any of its subsidiaries is
(x) in violation of its certificate of incorporation or by-
laws or (y) in default in the performance or observance of
any obligation, covenant or condition contained in any
agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, except to the extent
that such default would not, individually or in the
aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(vi) Subject to such qualification as may be set forth
in the Prospectus, the Company and its subsidiaries have,
and are in compliance with, such franchises, and to the best
knowledge of such counsel after reasonable investigation,
such licenses and authorizations, as are necessary to own
their cable communications properties and to conduct their
cable communications business in the manner described in the
Prospectus, except where the failure to have, or comply
with, such franchises, licenses and authorizations would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and such franchises,
licenses and authorizations contain no materially burdensome
restrictions not adequately described in the Prospectus,
which restrictions would have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(vii) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement, the Senior Debt Indenture, the Subordinated
Debt Indenture, the Offered Securities, any Delayed Delivery
Contracts, Warrant Agreement and the Unit Agreement, if any,
will not conflict with result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, known to
such counsel or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary (other than laws relating
specifically to the cable communications industry, as to
which such counsel is not called upon to express any
opinion), except to the extent that such conflict, breach,
violation or default would not, individually or in the
aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the performance
by the Company of its obligations under this Agreement, the
Senior Debt Indenture, the Subordinated Debt Indenture, the
Offered Securities, any Delayed Delivery Contracts, the
Warrant Agreement and the Unit Agreement, if any, except
such consents, approvals, authorizations, registrations or
qualifications (x) as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or (y)
relate specifically to the cable communications industry, as
to which such counsel is not called upon to express any
opinion; and
(ix) Such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus (except as to financial statements and
schedules included therein as to which such counsel need not
express any opinion) complied when so filed as to form in
all material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that any part of
the Registration Statement (except as to financial
statements and schedules included therein, as to which such
counsel need not express any belief, and except for that
part of the Registration Statement that constitutes Forms T-1),
on the date such part became effective contained, and
the Registration Statement (except as to financial
statements and schedules included therein, as to which such
counsel need not express any belief, and except for the part
of the Registration Statement that constitutes Forms T-1) as
of the date of the Underwriting Agreement contains any
untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3)
is of the opinion that the Registration Statement and
Prospectus (except as to financial statements and schedules
included therein, as to which such counsel need not express
any opinion) comply as to form in all material respects with
the Securities Act and the applicable rules and regulations
of the Commission thereunder and (4) has no reason to
believe that the Prospectus (except as to financial
statements and schedules included therein as to which such
counsel need not express any belief) as of the date such
opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Manager shall have received on the Closing Date an opinion
of Dow, Lohnes & Albertson, PLLC special communications counsel for the
Company, dated the Closing Date, to the effect that:
(i) No approval of the Federal Communications
Commission is required for the issuance and sale of the
Offered Securities;
(ii) The statements under the caption "Legislation and
Regulation" in the most recent annual report on Form 10-K,
as supplemented by any reports on Form 10-Q or 8-K filed
subsequent to such annual report on Form 10-K, incorporated
by reference in the Prospectus, insofar as they are, or
refer to, statements of federal communications law or legal
conclusions with respect to federal communications law, have
been reviewed by such counsel and, taken together, present
the information required to make such statements of federal
law or legal conclusions, in light of the circumstances in
which they were made, accurate in all respects material to
the business of the Company as described in the Prospectus;
and
(iii) The execution and delivery by the Company of
this Agreement, the Senior Debt Indenture, the Subordinated
Debt Indenture, the Offered Securities, any Delayed Delivery
Contracts, the Warrant Agreement and the Unit Agreement, if
any, and the fulfillment of the terms set forth therein do
not violate any statute, regulation or other law of the
United States relating specifically to the cable
communications industry or, to such counsel's knowledge, any
order, judgment or decree of any court or governmental body
of the United States relating specifically to the cable
communications industry and applicable to the Company or any
of its subsidiaries, which violation would have a material
adverse effect on the Company and its subsidiaries, taken as
a whole.
(e) The Manager shall have received on the Closing Date an
opinion of [________] special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (ii), (iii), (iv),
(v), (vi), (vii), (ix) (but only as to statements in the Prospectus under
"Description of Debt Securities", "Description of Warrants", "Description of
Purchase Contracts", "Description of Units" and "Plan of Distribution"), and
(x) (2), (3) and (4) of paragraph (b) above.
With respect to subparagraph (ix) of paragraph (c) above,
Arthur R. Block, Esquire (or Thomas R. Nathan, Esquire) may state that
his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of the
Registration Statement and Prospectus and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to subparagraph (x) of paragraph (b) above, Davis Polk & Wardwell
and [ ] may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus (but not including documents incorporated therein by reference)
and review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent auditors, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Prospectus; provided that such letter shall use a "cut-off date"
not earlier than the date of the Underwriting Agreement.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish to the Manager in New York City, without
charge, a conformed copy of the Registration Statement (including exhibits
and all amendments thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto) and
to furnish to the Manager in New York City, without charge, prior to 10:00
AM New York City time on the business day next succeeding the date of the
Underwriting Agreement and during the period mentioned in paragraph (c)
below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or supplement
and not to file any such proposed amendment or supplement to which the
Manager reasonably objects, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading, or if in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus, satisfactory in all respects to the Manager, so
that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances existing when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law and to cause such amendments or supplements
to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as the
Manager shall reasonably request and to maintain such qualifications for as
long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first full
fiscal quarter after the date of the Underwriting Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal year,
such earning statement shall be made available not later than 90 days after
the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company, warrants, purchase contracts or units
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Offered Securities, (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustees and their counsel, (iv) the
qualification of the Offered Securities under securities or blue sky laws
in accordance with the provisions of Section 6(d), including filing fees
and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
or Legal Investment Memoranda, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and
any amendments or supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of any blue sky or Legal Investment Memoranda,
(vii) any fees charged by rating agencies for the rating of the Offered
Securities, (viii) any expenses incurred by the Company in connection with
a "road show" presentation to potential investors, (ix) all document
production charges of counsel to the Underwriters (but not including their
fees for professional services in connection with the preparation of this
Agreement) and (x) any filing fees in connection with any review of the
offering of the Offered Securities by the National Association of
Securities Dealers, Inc.
7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph in this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or allegedly untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the respective amounts of Offered Securities
purchased by each of such Underwriters and not joint. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or
in equity.
8. Termination. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If on the Closing Date any one
or more of the Underwriters shall fail or refuse to purchase Offered
Securities that it has or they have agreed to purchase on such date, and
the aggregate amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of Underwriters' Securities set forth
opposite their respective names above bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on
such date; provided that in no event shall the amount of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such amount of Offered Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Offered Securities and the aggregate amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Offered Securities to be purchased on
such date, and arrangements satisfactory to the Manager and the Company for
the purchase of such Offered Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either
the Manager or the Company shall have the right to postpone the Closing
Date but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in
any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth
in this Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers, directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
12. Counterparts. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
13. Applicable Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New
York.
14. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed a part of this Agreement.
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Comcast Cable
Communications, Inc., a Delaware corporation (the "Company"), and the Company
agrees to sell to the undersigned the Company's securities described in
Schedule A annexed hereto (the "Securities"), offered by the Company's
Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule
A. Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company in Federal or
other funds immediately available in New York City at 10:00 A.M. (New York
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
------------------------------
(Purchaser)
By:___________________________
Name:
Title:
Address:
______________________________________________________________________________
Accepted:
COMCAST CABLE COMMUNICATIONS, INC.
By:________________________________
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
(including area
Name code) Department
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
SCHEDULE II
Comcast Holdings, Inc. (DE)
Comcast MHCP Holdings, L.L.C. (DE)
Comcast SCH Holdings, Inc. (CO)
Comcast Storer, Inc. (DE)
Storer Communications, Inc. (DE)
EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Preferred Securities)
__________, 199_
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Cable Trust [_] (the "Issuer Trust"), a statutory business trust
created under the Delaware Business Trust Act, proposes to issue and sell
[number and title of securities] Guaranteed Trust Preferred Securities (the
"Firm Preferred Securities"). [The Issuer Trust also proposes to issue and
sell to the several Underwriters not more than an additional [
] Guaranteed Trust Preferred Securities (the "Additional Preferred
Securities") if and to the extent that we, as Manager of the offering, shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Preferred Securities granted to the Underwriters
herein.] The Firm Preferred Securities [and the Additional Preferred
Securities] are hereinafter collectively referred to as the "Offered Preferred
Securities."
It is understood that substantially contemporaneously with the
closing of the sale of the Offered Preferred Securities to the Underwriters
contemplated hereby, (i) the Issuer Trust, its trustees (the "Issuer
Trustees") and Comcast Cable Communications, Inc. (the "Company") shall enter
into an Amended and Restated Trust Agreement in substantially the form of the
Form of the Amended and Restated Trust Agreement attached as Exhibit 4.[_] to
the Registration Statement referred to below (the "Trust Agreement"), pursuant
to which the Issuer Trust shall (x) issue and sell the Offered Preferred
Securities to the Underwriters pursuant hereto and (y) issue [___] shares of
its Common Securities (the "Common Securities" and, together with the Offered
Preferred Securities, the "Trust Securities") to the Company, in each case
with such rights and obligations as shall be set forth in such Trust
Agreement, (ii) the Company and [___], as Trustee, acting pursuant to a Junior
Subordinated Debt Indenture dated as of [___], 1998 shall provide for the
issuance of $[___] principal amount of the Company's [__]% Junior Subordinated
Deferrable Interest Debentures due [____] (the "Junior Subordinated
Debentures"), (iii) the Company shall sell such Junior Subordinated Debentures
to the Issuer Trust and the Issuer Trust shall purchase such Junior
Subordinated Debentures with proceeds of the sale of the Offered Preferred
Securities to the Underwriters contemplated hereby and of the Common
Securities to the Company and (iv) the Company and [____], as Guarantee
Trustee, shall enter into a Guarantee Agreement in substantially the form of
the Form of the Guarantee Agreement attached as Exhibit 4.14 of the
Registration Statement referred to below (the "Guarantee") for the benefit of
holders from time to time of the Offered Preferred Securities.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Issuer Trust hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the aggregate
number of Firm Preferred Securities set forth below opposite their names at a
purchase price of $[____] per Firm Preferred Security, (the "Purchase Price"),
provided, that the Company shall pay to the Underwriters' compensation equal
to $[____] per Firm Preferred Security:
Number of
Firm Preferred Securities
Underwriter To Be Purchased
[Insert syndicate list]
_________________
Total..........................................
=================
[Subject to the terms and conditions set forth or incorporated
by reference herein, the Issuer Trust hereby agrees to sell to the
Underwriters the Additional Preferred Securities and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to [
] Additional Preferred Securities at the Purchase Price plus
accrued dividends, if any, from [ ] to the date of
payment and delivery, provided, that the Company shall pay to the
Underwriters' compensation equal to $[____] per Additional Preferred Security.
Additional Preferred Securities may be purchased as provided herein solely for
the purpose of covering over-allotments made in connection with the offering
of the Firm Preferred Securities. If any Additional Preferred Securities are
to be purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Preferred Securities (subject to such
adjustments to eliminate fractional Additional Preferred Securities as you may
determine) that bears the same proportion to the total number of Additional
Preferred Securities to be purchased as the number of Firm Preferred
Securities set forth above opposite the name of such Underwriter bears to the
total number of Firm Preferred Securities.]
The Underwriters will pay for the Firm Preferred Securities
upon delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York at 10:00 a.m. (New York time) on [_____], 199_, or
at such other time, not later than 5:00 p.m. (New York time) on [______],
199_, as shall be designated by us. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
[Payment for any Additional Preferred Securities shall be made
to the Issuer Trust in immediately available funds at the offices referred to
above on such date (which may be the same as the Closing Date but shall in no
event be earlier than the Closing Date nor later than ten business days after
the giving of the notice hereinafter referred to) shall be designated in a
written notice from us to the Company of our determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Preferred Securities, or on such other date, in any event not later than [
], as shall be designated in writing by us. The time
and date of such payment are hereinafter referred to as the "Option Closing
Date." The notice of the determination to exercise the option to purchase
Additional Preferred Securities and of the Option Closing Date may be given at
any time within 30 days after the date of this Agreement.
The several obligations of the Underwriters to purchase
Additional Preferred Securities hereunder are subject to the delivery to us on
the Option Closing Date of such documents as we may reasonably request with
respect to the good standing of the Company, the due authorization and
issuance of Additional Preferred Securities and other matters related to the
issuance of the Additional Preferred Securities.]
The Offered Securities shall have the terms set forth in the
Prospectus dated , 1998, and the Prospectus Supplement dated
[______], 199_, including the following:
Terms of Offered Preferred Securities
Designation of the Series of Capital Securities:
Issuer of Offered Preferred Securities: Comcast Cable Trust [__]
Aggregate Number of Capital Securities:
Price to Public:
Purchase Price:
Underwriters' Compensation per Capital Security:
Closing Date:
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Underwriting Agreement Standard Provisions dated [____],
1998 relating to the Preferred Securities of Comcast Cable Trust I, Comcast
Cable Trust II and Comcast Cable Trust III (fully and unconditionally
guaranteed to the extent described therein by Comcast Cable Communications,
Inc. (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________]
By:_______________________________________
Name:
Title:
Accepted:
COMCAST CABLE
COMMUNICATIONS, INC.
By:__________________________________
Name:
Title:
COMCAST CABLE TRUST [ ]
By: Comcast Cable Communications, Inc.,
as Sponsor
By:__________________________________
Name:
Title:
COMCAST CABLE COMMUNICATIONS, INC.
COMCAST CABLE TRUST I
COMCAST CABLE TRUST II
COMCAST CABLE TRUST III
PREFERRED SECURITIES
(Fully and unconditionally guaranteed, to the extent described herein, by
Comcast Cable Communications, Inc.)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
[_________], 1998
From time to time, Comcast Cable Communications, Inc., a
Delaware corporation (the "Company"), may, together with any one of Comcast
Cable Trust I, Comcast Cable Trust II, Comcast Cable Trust III (each an
"Issuer Trust," and collectively the "Issuer Trusts"), enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes from time to time to cause one or more of
the Issuer Trusts to issue its guaranteed trust preferred securities
("Preferred Securities") guaranteed by the Company to the extent described in
the Prospectus (as defined below) with respect to distributions and amounts
payable upon liquidation or redemption pursuant to a Preferred Securities
Guarantee Agreement to be dated as of a date specified in the Underwriting
Agreement executed and delivered by the Company and [_______], as trustee (the
"Guarantee Trustee"), for the benefit of the holders from time to time of the
Preferred Securities (the "Guarantee").
If the Company proposes to issue Preferred Securities, the
specified Issuer Trust will use the proceeds from the sale of the Preferred
Securities and the sale of Common Securities (as defined below) to purchase
from the Company an aggregate principal amount of its Junior Subordinated
Deferrable Interest Debentures (the "Junior Subordinated Debentures") equal to
the aggregate liquidation amount of the Preferred Securities and Common
Securities issued by such Issuer Trust. The Junior Subordinated Debentures
will be issued under a Junior Subordinated Indenture to be dated as of [____],
1998 between the Company and [_________], as trustee (the "Debt Securities
Trustee") (as amended and supplemented from time to time the "Subordinated
Debt Indenture"). With respect to any issuance of Preferred Securities by an
Issuer Trustee, the Company will also be the holder of one hundred percent of
the common securities representing undivided beneficial interests in the
assets of the specified Issuer Trust (the "Common Securities" and together
with the Preferred Securities, the "Trust Securities"). Each Issuer Trust
will have been created under Delaware law pursuant to the filing of a
Certificate of Trust (each, a "Certificate of Trust") with the Secretary of
State of the State of Delaware, and will be governed by an Amended and
Restated Trust Agreement (each, a "Trust Agreement") among the Company, as
depositor,[________], as Institutional Trustee (the "Institutional Trustee"),
[__________], as Delaware Trustee (the "Delaware Trustee") (collectively, the
"Issuer Trustees"), and two individuals who will be selected by the holders of
the Common Securities and the holders from time to time of the Trust
Securities. The Company, as holder of the Common Securities of each Issuer
Trust, has appointed the Issuer Trustees and two individuals who are employees
or officers of or affiliated with the Company to act as administrators with
respect to the Issuer Trust (the "Administrators"). [_________], as
Institutional Trustee, will act as Indenture Trustee for the purposes of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
The Company and the Issuer Trusts have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
including a prospectus relating to the Debt Securities, the Preferred
Securities and the Guarantee (collectively, the "Securities") and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"), specifically relating to the
Securities offered pursuant to this Agreement ("Offered Preferred Securities"
and the "Offered Guarantee" and, together, the "Offered Securities"). The term
Registration Statement means the registration statement as amended to the date
of this Agreement. The term Basic Prospectus means the prospectus included in
the Registration Statement. The term Prospectus means the Basic Prospectus
together with the Prospectus Supplement. The term preliminary prospectus
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement", "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities, if
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. Each of the specified
Issuer Trust and the Company jointly and severally represents and warrants
to each of the Underwriters as of the date of the Underwriting Agreement:
(a) The Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be
filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each
such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply,
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder
and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions
in the Registration Statement or the Prospectus based upon
information concerning any Underwriter furnished to the
Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of the
trustees referred to in the Registration Statement.
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(e) The Issuer Trust has been duly created and
is validly existing in good standing as a business trust
under the Delaware Business Trust Act, is a "grantor trust"
for Federal income tax purposes, has the power and authority
to conduct its business as presently conducted and as
described in the Prospectus and is not required to be
authorized to do business in any other jurisdiction.
(f) This Agreement has been duly authorized,
executed and delivered by each of the Issuer Trust and the
Company.
(g) The Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(h) The Junior Subordinated Debentures have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Subordinated Debt
Indenture, and delivered to and paid for as described in the
Prospectus in accordance with the terms of the Underwriting
Agreement, in the case of the Underwriters' Securities, or by
institutional investors in accordance with the terms of the
Delayed Delivery Contracts, in the case of Contract
Securities, will be entitled to the benefits of the
Subordinated Indenture, and will be valid and legally binding
obligations of the Company, in each case enforceable in
accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(i) The Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the
Company and are valid and binding agreements of the Company,
enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(j) The Guarantee has been qualified under the
Trust Indenture Act and has been duly authorized by the
Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and
delivery by the Guarantee Trustee), will, as of the Closing
Date, be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law.
(k) The Trust Agreement has been qualified
under the Trust Indenture Act and has been duly authorized by
the Company and, upon execution and delivery thereof by the
Company (and assuming due authorization, execution and
delivery thereof by each party thereto other than the
Company), will, as of the Closing Date, be a valid and
binding agreement of the Company, the Issuer Trustees and the
Administrators, enforceable in accordance with its terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as
rights to indemnification may be limited under applicable
law.
(l) The Offered Preferred Securities have been
duly authorized by the Trust Agreement and, when executed and
authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be
validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Issuer Trust, and the issuance
of such Offered Preferred Securities will not be subject to
any preemptive or similar rights. Holders of the Offered
Preferred Securities will be entitled to the same limitation
of personal liability as that extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Common
Securities have been duly authorized by the Trust Agreement
and, when issued and delivered to the Company against payment
therefor as described in the Prospectus, will be validly
issued undivided beneficial interests in the assets of the
Issuer Trust, and the issuance of such Common Securities will
not be subject to any preemptive rights.
(m) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Subordinated Debt Indenture, the
Trust Agreement, the Guarantee, the Junior Subordinated
Debentures and any Delayed Delivery Contracts, will not
contravene any provision of applicable law, the Trust
Agreement or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to
the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or
any of its consolidated subsidiaries, and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Subordinated Debt Indenture, the Trust
Agreement, the Guarantee, the Junior Subordinated Debentures
and any Delayed Delivery Contracts, except such as may be
required by the securities or blue sky laws of the various
states in connection with the offer and sale of the Offered
Securities; provided, however, that no representation is made
as to whether the purchase of the Offered Preferred
Securities constitutes a "prohibited transaction" under
Section 406 of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue
Code of 1986, as amended.
(n) The execution and delivery by the Issuer
Trust of, and the performance by the Issuer Trust of its
obligations under, this Agreement will not contravene any
provision of applicable law or the Trust Agreement or any
agreement or other instrument binding upon the Issuer Trust,
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer Trust,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by the Issuer Trust of its
obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered
Securities; provided, however, that no representation is made
as to whether the purchase of the Offered Preferred
Securities constitutes a "prohibited transaction" under 406
of the Employment Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of
1986, as amended.
(o) There has not occurred any material
adverse change, or any development involving a prospective
material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Issuer Trust or the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of
any amendments or supplements thereto effected subsequent to
the date of the Underwriting Agreement).
(p) The Issuer Trust is not, and after giving
effect to the offering and sale of the Offered Preferred
Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment
company" as such term is defined under the Investment Company
Act of 1940, as amended.
(q) There are no legal or governmental
proceedings pending or threatened to which the Issuer Trust
or the Company or any of its consolidated subsidiaries is a
party or to which any of the properties of the Issuer Trust
or the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(r) Each of the Issuer Trust and the Company
and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on
the Company and its consolidated subsidiaries, taken as a
whole.
(s) The Company has complied with all
provisions of Section 517.075, Florida Statutes relating to
doing business with the Government of Cuba or with any person
or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides
for sales of Offered Securities pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Securities on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in proportion to the amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement,
except to the extent that the Manager determines that such reduction shall be
applied in other proportions and so advises the Company; provided, however,
that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. Public Offering. The Issuer Trust and the Company are
advised by the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters' Securities as soon
after this Agreement has been entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in
this Section 4, payment for the Underwriters' Securities shall be made to the
Issuer Trust or the Company, as applicable, in immediately available funds at
the time and place set forth in the Underwriting Agreement, upon delivery to
the Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations or
amounts, as the case may be, as the Manager shall request in writing not less
than one full business day prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the Underwriters' Securities
to the Underwriters duly paid.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any
review for a possible change that does not indicate
the direction of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating
organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change,
or any development involving a prospective change,
in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and
its consolidated subsidiaries, taken as a whole,
or, with respect to an offering of Preferred
Securities, the Issuer Trust, from that set forth
in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the
execution and delivery of the Underwriting
Agreement), that, in the judgment of the Manager,
is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the
Closing Date a certificate, dated the Closing Date
and signed by the Chairman of the Board, the
President, the Chief Financial Officer, the Chief
Strategic and Administrative Officer, the Chief
Legal Officer, the Treasurer, any Assistant
Treasurer of the Company, or any other person
authorized by the Board of Directors of the Company
to execute any such written statement (an
"Executive Officer"), and, in the case of an
offering of Preferred Securities, a certificate,
dated the Closing Date and signed by an
Administrator of the Issuer Trust,
(A) to the effect set forth in clause
(i) above (in the case of the certificate
signed by an executive officer of the
Company); and
(B) to the effect that the
representations and warranties of the Company
and, in the case of an offering of Preferred
Securities, the Issuer Trust contained in
this Agreement are true and correct as of the
Closing Date and that each of the Company and
the Issuer Trust, as applicable, has complied
with all of the agreements and satisfied all
of the conditions on its part to be performed
or satisfied on or before the Closing Date.
The Executive Officer or Administrator signing and delivering such
certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel to the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the
power and authority to own its properties and
conduct its business as described in the
Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Subordinated Debt Indenture has been
duly qualified under the Trust Indenture Act and
(assuming the due execution and delivery thereof by
the Trustee) is a valid and binding agreement of the
Company, enforceable in accordance with its terms
except as the enforceability thereof (A) may be
limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws
affecting creditors' rights generally and (B) is
subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(iv) the Junior Subordinated Debentures have
been duly authorized and, when executed and
authenticated in accordance with the provisions of
the relevant Subordinated Debt Indenture, and
delivered to and paid for as described in the
Prospectus will be entitled to the benefits of the
Subordinated Debt Indenture, and will be valid and
binding obligations of the Company, in each case
enforceable in accordance with their respective
terms except as the enforceability thereof (A) may
be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally
and (B) is subject to general principles of
equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(v) the Guarantee has been duly authorized,
executed and delivered by the Company and is a valid
and binding obligation of the Company enforeceable in
accordance with its terms except as the
enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws
affecting creditors' rights generally and (b) is
subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vi) the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company and (assuming the due execution and
delivery thereof by the institutional investors party
thereto) are valid and binding agreements of the
Company enforceable in accordance with their
respective terms except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally
and is subject to general principles of equity,
regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(vii) the execution and delivery by the Issuer
Trust of, and the performance of its obligations
under, the Underwriting Agreement and the
execution and delivery by the Company of, and the
performance by the Company of its obligations
under, the Underwriting Agreement, the
Subordinated Debt Indenture, the Trust Agreement,
the Guarantee and any Delayed Delivery Contracts
will not contravene any provisions of applicable
law or the certificate of incorporation or by-laws
of the Company or the Trust Agreement and will not
contravene any provision of applicable law of the
United States (except with respect to laws
relating specifically to the cable communications
industry, as to which such counsel is not called
upon to express any opinion) or New York; and no
consent, approval or authorization or order of or
qualification with any governmental body or agency
of the United States (except any consents,
approvals, authorizations, orders, registrations
or qualifications relating specifically to the
cable communications industry, as to which such
counsel is not called upon to express any opinion)
is required for the performance by the Issuer
Trust or the Company of its obligations under the
Underwriting Agreement, the Subordinated Debt
Indenture, the Trust Agreement, the Guarantee and
any Delayed Delivery Contracts, except such as may
be required by the securities or blue sky laws of
the various states in connection with the offer
and sale of the Offered Securities;
(viii) the Issuer Trust is not and, after
giving effect to the offering and sale of the
Offered Preferred Securities and the application
of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act
of 1940, as amended;
(ix) such counsel is of the opinion
ascribed to it under the caption "Certain Federal
Income Tax Consequences" in the Prospectus
Supplement;
(x) the statements (1) in the Prospectus
under the captions "Description of the Senior Debt
Securities and Subordinated Debt Securities",
"Description of the Guaranteed Trust Preferred
Securities", "Description of the Guaranteed Trust
Preferred Securities Guarantees" and "Plan of
Distribution", (2) in the Registration Statement
under Item 15, in each case insofar as such
statements constitute summaries of the legal
matters, documents or proceedings referred to
therein, fairly present the information called for
with respect to such legal matters, documents and
proceedings and fairly summarize the matters
referred to therein;
(xi) such counsel (1) is of the opinion
that each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except
as to financial statements and schedules included
therein as to which such counsel need not express
any opinion) complied when so filed as to form in
all material respects with the Exchange Act and
the applicable rules and regulations of the
Commission thereunder, (2) has no reason to
believe that any part of the Registration
Statement (except as to financial statements and
schedules included therein, as to which such
counsel need not express any belief, and except
for that part of the Registration Statement that
constitutes Forms T-1), on the date such part
became effective contained, and the Registration
Statement (except as to financial statements and
schedules included therein, as to which such
counsel need not express any belief, and except
for the part of the Registration Statement that
constitutes Forms T-1) as of the date such opinion
is delivered contains any untrue statement of a
material fact or omitted or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except as
to financial statements and schedules included
therein, as to which such counsel need not express
any opinion) comply as to form in all material
respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder and (4) has no reason to believe that
the Prospectus (except as to financial statements
and schedules included therein as to which such
counsel need not express any belief) as of the
date such opinion is delivered contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
(c) The Manager shall have received on the Closing
Date an opinion of Arthur R. Block, Esquire, Senior Deputy
General Counsel of the Company (or Thomas R. Nathan,
Esquire, Deputy General Counsel of the Company), dated the
Closing Date, to the effect that:
(i) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or
conducts any business so as to require such
qualification (except where the failure to so qualify
would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole) (such counsel
being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officer
of the Company; provided that such counsel shall state
that he believes that both you and he are justified in
relying upon such opinions and certificates);
(ii) Each subsidiary listed on Schedule II
hereto, which subsidiaries constitute all of the
material subsidiaries of the Company ( the "Material
Subsidiaries"), has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and
all of the issued shares of capital stock of each such
Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-
assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions
of local counsel and in respect of maters of fact upon
certificates of officer of the Company or its
subsidiaries, provided that such counsel shall state
that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iii) To the best of such counsel's knowledge and
other than as set forth or incorporated by reference in
the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries or the Issuer Trust is a party or of which
any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the
Company or any of its subsidiaries or the Issuer Trust,
would, individually or in the aggregate, have a
material adverse effect on the Company and its
subsidiaries, taken as a whole or the Issuer Trust; and
to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) The Company and its subsidiaries have good
and marketable title in fee simple to all real property
owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are
described in the Prospectus or such as would not have
material adverse effect on the Company and its
subsidiaries, taken as a whole (in giving the opinion
in this clause, such counsel may state that no
examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a
general review of the titles of the Company and its
subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its
subsidiaries, upon opinions of counsel to the lessors
of such property and, in respect of matters of fact,
upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state
that he believes that both you and he are justified in
relying upon such opinions, abstracts, reports,
policies and certificates);
(v) Neither the Company nor any of its
subsidiaries is (x) in violation of its certificate of
incorporation or by-laws or (y) in default in the
performance or observance of any obligation, covenant
or condition contained in any agreement or other
instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, except to the extent
that such default would not, individually or in the
aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(vi) Subject to such qualification as may be set
forth in the Prospectus, the Company and its
subsidiaries have, and are in compliance with, such
franchises, and to the best knowledge of such counsel
after reasonable investigation, such licenses and
authorizations, as are necessary to own their cable
communications properties and to conduct their cable
communications business in the manner described in the
Prospectus, except where the failure to have, or comply
with, such franchises, licenses and authorizations
would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and such
franchises, licenses and authorizations contain no
materially burdensome restrictions not adequately
described in the Prospectus, which restrictions would
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(vii) The execution and delivery by the Issuer
Trust of, and the performance of its obligations under,
the Underwriting Agreement and the execution and
delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting
Agreement, the Subordinated Debt Indenture, the Trust
Agreement, the Guarantee and any Delayed Delivery
Contracts will not conflict with result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any agreement or other
instrument binding upon the Company or any of its
subsidiaries or the Issuer Trust that is material to
the Company and its subsidiaries, taken as a whole, or
the Issuer Trust known to such counsel or any judgment,
order or decree of any governmental body, agency or
court having jurisdiction over the Company or any
subsidiary (other than laws relating specifically to
the cable communications industry, as to which such
counsel is not called upon to express any opinion), or
the Issuer Trust except to the extent that such
conflict, breach, violation or default would not,
individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries,
taken as a whole or the Issuer Trust; and
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
performance by the Issuer Trust of its obligations
under the Underwriting Agreement or by the Company of
its obligations under this Agreement, the Subordinated
Debt Indenture, the Trust Agreement, the Guarantee and
any Delayed Delivery Contracts, except such consents,
approvals, authorizations, registrations or
qualifications (x) as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters or (y) relate specifically to the cable
communications industry, as to which such counsel is
not called upon to express any opinion;
(ix) Such counsel (1) is of the opinion that
each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Registration
Statement and the Prospectus (except as to financial
statements and schedules included therein as to which
such counsel need not express any opinion) complied
when so filed as to form in all material respects with
the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no
reason to believe that any part of the Registration
Statement (except as to financial statements and
schedules included therein, as to which such counsel
need not express any belief, and except for that part
of the Registration Statement that constitutes Forms T-
1), on the date such part became effective contained,
and the Registration Statement (except as to financial
statements and schedules included therein, as to which
such counsel need not express any belief, and except
for the part of the Registration Statement that
constitutes Forms T-1) as of the date of the
Underwriting Agreement contains any untrue statement of
a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading, (3) is of the
opinion that the Registration Statement and Prospectus
(except as to financial statements and schedules
included therein, as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus
(except as to financial statements and schedules
included therein as to which such counsel need not
express any belief) as of the date such opinion is
delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(d) The Manager shall have received on the Closing
Date an opinion of Dow, Lohnes & Albertson, PLLC special
communications counsel for the Company, dated the Closing
Date, to the effect that:
(i) No approval of the Federal Communications
Commission is required for the issuance and sale of the
Offered Securities;
(ii) The statements under the caption
"Legislation and Regulation" in the most recent annual
report on Form 10-K, as supplemented by any reports on
Form 10-Q or 8-K filed subsequent to such annual report
on Form 10-K, incorporated by reference in the
Prospectus, insofar as they are, or refer to,
statements of federal communications law or legal
conclusions with respect to federal communications law,
have been reviewed by such counsel and, taken together,
present the information required to make such
statements of federal law or legal conclusions, in
light of the circumstances in which they were made,
accurate in all respects material to the business of
the Company as described in the Prospectus; and
(iii) The execution and delivery by the Issuer
Trust of the Underwriting Agreement or by the Company
of its obligations under the Underwriting Agreement,
the Subordinated Debt Indenture, the Trust Agreement,
the Guarantee and any Delayed Delivery Contracts, and
the fulfillment of the terms set forth therein do not
violate any statute, regulation or other law of the
United States relating specifically to the cable
communications industry or, to such counsel's
knowledge, any order, judgment or decree of any court
or governmental body of the United States relating
specifically to the cable communications industry and
applicable to the Company or any of its subsidiaries,
which violation would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
[(e) The Manager shall have received on the
Closing Date an opinion of [________], special counsel for
the Underwriters, dated the Closing Date, covering the
matters referred to in subparagraphs (iv), (v), (vi), (vii),
(viii), (xii) (but only as to statements in the Prospectus
under "Description of the Senior Debt Securities and
Subordinated Debt Securities," "Description of the
Guaranteed Trust Preferred Securities," "Description of
Units," "Description of the Guaranteed Trust Preferred
Securities Guarantees" and "Plan of Distribution"), and
(xiv) (2), (3) and (4) of paragraph (b) above.]
[With respect to subparagraph (ix) of paragraph (c) above,
Arthur R. Block, Esquire (or Thomas R. Nathan, Esquire) may state that his
opinion and belief are based upon his participation, or the participation of
someone under his supervision, in the preparation of the Registration
Statement and Prospectus and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to subparagraph (x)
of paragraph (b) above, Davis Polk & Wardwell and [ ] may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are
without independent check or verification, except as specified.]
(f) The Manager shall have received on the Closing Date
an opinion dated the Closing Date of Richards, Layton &
Finger, P.A., special Delaware counsel for the Issuer Trust
or the Company, or of other counsel satisfactory to the
Manager, to the effect that:
(i) the Issuer Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Business Trust Act and under the
Trust Agreement and the Delaware Business Trust Act has
the trust power and authority to conduct its business,
all as described in the Registration Statement and
Prospectus;
(ii) assuming due authorization, execution and
delivery of the Trust Agreement by the Company, the
Administrators and the Issuer Trustees, the Trust
Agreement is a legal, valid and binding agreement of
the Company, the Administrators and the Issuer Trustees
and is enforceable against the Company, the
Administrators and the Issuer Trustees, in accordance
with its terms, subject, as to enforcement, to the
effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and transfer, and
other similar laws relating to or affecting the rights
and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of
provisions relating to indemnification or contribution;
(iii) under the Trust Agreement and the Delaware
Business Trust Act, the execution and delivery of the
Underwriting Agreement by the Issuer Trust, and the
performance by the Issuer Trust of its obligations
thereunder, have been duly authorized by all necessary
trust action on the part of the Issuer Trust;
(iv) the Preferred Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued and, subject to the qualifications set
forth herein, will be fully paid and nonassessable
undivided beneficial interests in the assets of the
Issuer Trust; the holders of Preferred Securities, as
beneficial owners of the Issuer Trust, will be entitled
to the same limitation of personal liability extended
to stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware;
(v) the Common Securities have been duly
authorized by the Trust Agreement and are duly and
validly issued undivided beneficial interests in the
assets of the Trust;
(vi) under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Trust
Securities is not subject to preemptive rights;
(vii) the statements in the Basic Prospectus under
the caption "Trust Subsidiaries" and "Description of
the Guaranteed Trust Preferred Securities" insofar as
such statements constitute statements of Delaware law,
are fairly presented;
(viii) the issuance and the sale of the Trust
Securities by the Issuer Trust, the execution, delivery
and performance by the Issuer Trust of the Underwriting
Agreement, the consummation by the Issuer Trust of the
transactions contemplated by the Underwriting Agreement
and compliance by the Issuer Trust with its obligations
under the Underwriting Agreement do not violate (A) the
Certificate or the Trust Agreement, or (B) any
applicable Delaware law or Delaware administrative
regulation;
(ix) after due inquiry, limited to, and solely to
the extent disclosed on [a date immediately prior to]
the Closing Date, the court dockets for active cases of
the Court of Chancery of the State of Delaware in and
for New Castle County, Delaware, of the Superior Court
of the State of Delaware in and for New Castle County,
Delaware, and of the United States Federal District
Court sitting in the State of Delaware, we do not know
of any legal or governmental proceeding pending against
the Issuer Trust;
(x) no authorization, approval, consent or order
of any Delaware court or any Delaware governmental
authority or Delaware agency is required to be obtained
by the Issuer Trust solely in connection with the
issuance and sale of the Trust Securities; and
(xi) the Capital Security Holders (other than those
Capital Security Holders who reside or are domiciled in
the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as
a result of their participation in the Issuer Trust,
and the Issuer Trust will not be liable for any income
tax imposed by the State of Delaware.
In rendering such opinion, such counsel may note that Holders
of Trust Securities may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and security in connection with and pay taxes or other
governmental charges arising from transfers of certificates for Trust
Securities and the issuance of replacement certificates for Trust Securities,
(ii) provide security and indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and remedies
under the Trust Agreement and (iii) undertake as a party litigant to pay costs
in any suit for the enforcement of any right or remedy under the Trust
Agreement or against the Institutional Trustee, to the extent provided in the
Trust Agreement.
(g) The Manager shall have received on the Closing Date
a letter, dated the Closing Date, in form and substance
satisfactory to the Manager, from the Company's independent
auditors, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in or incorporated
by reference into the Prospectus.
6. Covenants of the Company and the Issuer Trust. In further
consideration of the agreements of the Underwriters contained herein, each of
the Company and the Issuer Trust covenants as follows:
(a) To furnish the Manager, without charge, a conformed
copy of the Registration Statement (including exhibits and
all amendments thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered
Securities, to furnish to the Manager a copy of each such
proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion
of counsel for the Underwriters the Prospectus is required
by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or
if in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply
with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names
and addresses the Manager will furnish to the Company and
the Issuer Trust) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements
to the Prospectus, satisfactory in all respects to the
Manager, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the
Commission.
(d) To endeavor to qualify the Offered Securities, the
Preferred Securities and the Guarantees for offer and sale
under the securities or blue sky laws of such jurisdictions
as the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably
request.
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable
an earning statement covering a twelve month period
beginning on the first day of the first full fiscal quarter
after the date of the Underwriting Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning
statement shall be made available not later than 90 days
after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or
any securities with characteristics similar to those of the
Preferred Securities (other than (i) the Offered Securities
and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance
of the Company's and the Issuer Trust's obligations under
this Agreement, including: (i) the preparation and filing
of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Offered Securities, (iii) the
fees and disbursements of the Company's counsel and
accountants, of the Issuer Trust's counsel and of the
Trustees and their counsel, (iv) the qualification of the
Offered Securities and, in the case of an offering of
Preferred Securities, the Preferred Securities and the
Guarantees under securities or blue sky laws in accordance
with the provisions of Section 6(d), including filing fees
and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky or Legal Investment
Memoranda, (v) the printing and delivery to the Underwriters
in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Underwriters of copies of
any blue sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating of the Offered
Securities, (viii) any expenses incurred by the Company or
the Issuer Trust in connection with a "road show"
presentation to potential investors, (ix) all document
production charges of counsel to the Underwriters (but not
including their fees for professional services in connection
with the preparation of this Agreement) and (x) any filing
fees in connection with any review of the offering of the
Offered Securities by the National Association of Securities
Dealers, Inc.
7. Indemnification and Contribution. The Company, or in the
case of an offering of Preferred Securities, each of the Company and the
Issuer Trust jointly and severally, agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or allegedly untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company and the Issuer Trust
in writing by such Underwriter through the Manager expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company or the Issuer Trust shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Issuer Trust
or Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Issuer Trust to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
or the Issuer Trust by such Underwriter in writing through the Manager
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company and the Issuer Trust, in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph in this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Issuer Trust on the one hand
and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Issuer Trust on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Issuer Trust on the one hand and the Underwriters on the
other hand in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by
the Company and the Issuer Trust and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of the Company
and the Issuer Trust on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Issuer Trust or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Issuer Trust and the Underwriters agree that
it would not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective amounts of Offered Securities purchased by each of such
Underwriters and not joint. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company or, in the case of an offering of Preferred
Securities, the Issuer Trust shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase hereunder on such date, and the
aggregate number of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Preferred Securities set forth opposite
their respective names herein bears to the aggregate number of Firm
Preferred Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as we may specify, to
purchase the Offered Preferred Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the number of Offered Preferred Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such number of Offered Preferred Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Preferred Securities and the
aggregate number of Firm Preferred Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Preferred Securities to be purchased, and arrangements satisfactory to us
and the Company for the purchase of such Firm Preferred Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either we or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Preferred Securities and the
aggregate number of Additional Preferred Securities with respect to which
such default occurs is more than one-tenth of the aggregate number of
Additional Preferred Securities to be purchased, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation
hereunder to purchase Additional Preferred Securities or (ii) purchase not
less than the number of Additional Preferred Securities that such non-
defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or
the Issuer Trust to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or the Issuer Trust shall
be unable to perform its obligations under this Agreement, the Company and the
Issuer jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Issuer Trust, the Administrators, the Company, its
officers and the Underwriters set forth in this Agreement will remain in full
force and effect, regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company or on behalf of the Issuer
Trust, the Issuer Trustee, the Administrators, or any person controlling the
Issuer Trust and (iii) acceptance of and payment for any of the Offered
Securities.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, Administrators and Issuer Trustees and controlling
persons referred to in Section 8, and no other person will have any right or
obligation hereunder.
12. Counterparts. The Underwriting Agreement may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Comcast Cable
Communications, Inc., a Delaware corporation (the "Company"), and the Company
agrees to sell to the undersigned the Company's securities described in
Schedule A annexed hereto (the "Securities"), offered by the Company's
Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule
A. Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made in immediately available funds at
the office of , New York, N.Y., at
10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
(Purchaser)
By:___________________________
Name:
Title:
Address:
Accepted:
COMCAST CABLE COMMUNICATIONS, INC.
By:________________________________
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
(including area
Name code) Department
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
------------------ ----------------- ------------
SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
SCHEDULE II
Comcast Holdings, Inc. (DE)
Comcast MHCP Holdings, L.L.C. (DE)
Comcast SCH Holdings, Inc. (CO)
Comcast Storer, Inc. (DE)
Storer Communications, Inc. (DE)
EXHIBIT 4.2
COMCAST CABLE COMMUNICATIONS, INC.
-----------------------------------------------------
-----------------------------------------------------
INDENTURE
DATED AS OF , 1998
[______________________________________]
AS TRUSTEE
-----------------------------------------------------
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................2
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally................................................9
SECTION 2.02. Form of Trustee's Certificate of Authentication...............10
SECTION 2.03. Amount Unlimited; Issuable in Series..........................10
SECTION 2.04. Authentication and Dating.....................................12
SECTION 2.05. Date and Denomination of Securities...........................14
SECTION 2.06. Execution of Securities.......................................16
SECTION 2.07. Exchange and Registration of Transfer of Securities...........16
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities...............17
SECTION 2.09. Temporary Securities..........................................18
SECTION 2.10. Cancellation of Securities Paid, etc..........................19
SECTION 2.11. Global Securities.............................................19
ARTICLE 3
PARTICULAR COVENANTS OF
THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest....................21
SECTION 3.02. Offices for Notices and Payments, etc.........................21
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office............22
SECTION 3.04. Provision as to Paying Agent..................................22
SECTION 3.05. Certificate to Trustee........................................23
SECTION 3.06. Appointment to Fill Vacancy in Office of Trustee..............23
SECTION 3.07. Compliance with Consolidation Provisions......................23
SECTION 3.08. Limitation on Dividends; Transactions with Affiliates.........23
SECTION 3.09. Covenants as to Comcast Cable Trusts..........................24
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists........................................24
SECTION 4.02. Preservation and Disclosure of Lists..........................25
SECTION 4.03. Reports by Company............................................26
SECTION 4.04. Reports by the Trustee........................................27
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.............................................29
SECTION 5.02. Payment of Securities on Default; Suit Therefor...............31
SECTION 5.03. Application of Moneys Collected by Trustee....................34
SECTION 5.04. Proceedings by Securityholders................................34
SECTION 5.05. Proceedings by Trustee........................................35
SECTION 5.06. Remedies Cumulative and Continuing............................35
SECTION 5.07. Direction of Proceedings and Waiver Defaults by Majority
of Securityholders............................................36
SECTION 5.08. Notice of Defaults............................................37
SECTION 5.09. Undertaking to Pay Costs......................................37
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee........................38
SECTION 6.02. Reliance on Documents, Opinions, etc..........................39
SECTION 6.03. No Responsibility for Recitals, etc...........................41
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities........................41
SECTION 6.05. Moneys to Be Held in Trust....................................41
SECTION 6.06. Compensation and Expenses of Trustee..........................41
SECTION 6.07. Officers' Certificate as Evidence.............................42
SECTION 6.08. Conflicting Interest of Trustee...............................42
SECTION 6.09. Eligibility of Trustee........................................42
SECTION 6.10. Resignation or Removal of Trustee.............................43
SECTION 6.11. Acceptance by Successor Trustee...............................45
SECTION 6.12. Succession by Merger, etc.....................................46
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.................46
SECTION 6.14. Authenticating Agents.........................................46
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.....................................48
SECTION 7.02. Proof of Execution by Securityholders.........................49
SECTION 7.03. Who Are Deemed Absolute Owners................................49
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding............49
SECTION 7.05. Revocation of Consents; Future Holders Bound..................50
ARTICLE 8
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings..........................................50
SECTION 8.02. Call of Meetings by Trustee...................................51
SECTION 8.03. Call of Meetings by Company or Securityholders................51
SECTION 8.04. Qualifications for Voting.....................................52
SECTION 8.05. Regulations...................................................52
SECTION 8.06. Voting........................................................53
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Securityholders...............................................53
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.......55
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.......................................57
SECTION 9.04. Notation on Securities........................................57
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.............................................57
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.
SECTION 10.01. Company May Consolidate, Etc. on Certain Terms...............58
SECTION 10.02. Successor Corporation to be Substitute for Company...........58
SECTION 10.03. Opinion of Counsel to Be Given Trustee.......................59
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.......................................59
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Trustee..................................60
SECTION 11.03. Paying Agent to Repay Moneys Held............................60
SECTION 11.04. Return of Unclaimed Money....................................60
SECTION 11.05. Defeasance upon Deposit of Moneys or U.S. Government
Obligations..................................................61
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 12.01. Indenture and Securities Solely Corporate Obligations........63
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors...................................................63
SECTION 13.02. Official Acts by Successor Corporation.......................63
SECTION 13.03. Surrender of Company Powers..................................63
SECTION 13.04. Addresses for Notices, etc...................................64
SECTION 13.05. Governing Law................................................64
SECTION 13.06. Evidence of Compliance with Conditions Precedent.............64
SECTION 13.07. Legal Holiday................................................65
SECTION 13.08. Trust Indenture Act to Control...............................65
SECTION 13.09. Table of Contents, Headings, etc.............................65
SECTION 13.10. Execution in Counterpart.....................................65
SECTION 13.11. Separability.................................................65
SECTION 13.12. Assignment...................................................66
SECTION 13.13. Acknowledgment of Rights.....................................66
ARTICLE 14
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.....................................66
SECTION 14.02. Notice of Redemption; Selection of Securities................67
SECTION 14.03. Payment of Securities Called for Redemption..................68
SECTION 14.04. Mandatory and Optional Sinking Fund..........................68
ARTICLE 15
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.....................................70
SECTION 15.02. Default on Senior Indebtedness...............................71
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.........................71
SECTION 15.04. Subrogation..................................................73
SECTION 15.05. Trustee to Effectuate Subordination..........................74
SECTION 15.06. Notice by the Company........................................74
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness........75
SECTION 15.08. Subordination May Not Be Impaired............................76
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of , 1998 between Comcast Cable Communications, Inc. and [________________],
Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1).................................................................6.09
(a)(2)..............................................................6.09
310(a)(3).................................................................N.A.
(a)(4)..............................................................N.A.
310(b)...............................................15.06; 6.10(a)(b) and (d)
310(c)....................................................................N.A.
311(a) and (b)............................................................6.13
311(c)....................................................................N.A.
312(a)...........................................................4.01; 4.02(a)
312(b) and (c).................................................4.02(b) and (c)
313(a).................................................................4.04(a)
313(b)(1).................................................................N.A.
313(b)(2)..............................................................4.04(b)
313(c).................................................................4.04(c)
313(d) ................................................................4.04(d)
314(a)....................................................................4.03
314(b)....................................................................N.A.
314(c)(1) and (2)........................................................13.05
314(c)(3).................................................................N.A.
314(d)....................................................................N.A.
314(e)...................................................................13.05
314(f)....................................................................N.A.
315(a)(c) and (d).........................................................6.01
315(b)....................................................................5.08
315(e)....................................................................5.09
316(a)(1) ..........................................................5.01; 5.07
316(a)(2)..............................................................Omitted
316(a) last sentence......................................................7.04
316(b)....................................................................5.04
317(a)....................................................................5.02
317(b).................................................................3.04(a)
318(a)...................................................................13.07
- ------------------------------
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
THIS INDENTURE, dated as of , 1998, between Comcast Cable
Communications, Inc., a Delaware corporation (hereinafter sometimes called the
"Company"), and [___________________], a national banking corporation, as
trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its subordinated unsecured
debentures, notes or other evidence of indebtedness to be issued in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture and,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Securities
by the holders thereof, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective holders from time to time
of the Securities or of a series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), or which are by reference therein defined in the
Securities Act of 1933, as amended (the "Securities Act"), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture as originally
executed. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. 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.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f)
if the specified Person is an individual, any entity of which the specified
Person is an officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean the Board of Directors or the
Executive Committee or any other duly authorized committee thereof of the
Company.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" shall mean, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Certificate" shall mean a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company.
"Comcast Cable Trust" shall mean each of Comcast Cable Trust I,
Comcast Cable Trust II and Comcast Cable Trust III, each, a Delaware business
trust or any other similar trust created for the purpose of issuing preferred
securities in connection with the issuance of Securities under this Indenture.
"Common Securities" shall mean undivided beneficial interests in the
assets of a Comcast Cable Trust which rank pari passu with Preferred Securities
issued by such Comcast Cable Trust; provided, however, that upon the occurrence
of an Event of Default, the rights of holders of Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" shall mean any guarantee that the
Company may enter into with any Person or Persons that operate directly or
indirectly for the benefit of holders of Common Securities of such Comcast
Cable Trust.
"Company" shall mean Comcast Cable Communications, Inc., a Delaware
corporation, and, subject to the provisions of Article 10, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Declaration", with respect to a Comcast Cable Trust, shall mean the
Amended and Restated Declaration of Trust of such Comcast Cable Trust.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.04 or 2.11.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Funded Debt" shall mean all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendible beyond 12 months from such date at the option of
the borrower.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Securities
established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the Declaration
of the applicable Comcast Cable Trust.
"Interest" shall mean, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, shall mean the date specified in
such Security or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" shall mean a certificate signed by (i) the
Chairman of the Board, the Chairman, the President, the Executive Vice
president or any Senior Vice President, and (ii) by the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 13.055.015.01and to the extent provided by
the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or may be other
counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 5.01 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Security (or any portion thereof) shall
mean the earlier of (a) the date of authorization of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" shall mean 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 5.01.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt and as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.08 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Preferred Securities" shall mean undivided beneficial interests in
the assets of a Comcast Cable Trust which rank pari passu with Common
Securities issued by such Comcast Cable Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common Securities
to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of Preferred
Securities.
"Preferred Securities Guarantee" shall mean any guarantee that the
Company may enter into with [ ] or other Persons that operate directly or
indirectly for the benefit of holders of Preferred Securities of such Comcast
Cable Trust.
"Principal office of the Trustee", or other similar term, shall mean
the principal office of the Trustee, at which at any particular time its
corporate trust business shall be administered.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman and vice chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the cashier, any assistant cashier, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, any
senior trust officer, any trust officer, the controller, any assistant
controller or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" shall have the meaning stated in the first
recital of this Indenture and more particularly means any security or
securities, as the case may be, authenticated and delivered under this
Indenture.
The term "outstanding" (except as otherwise provided in Section 6.08),
when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have
been set aside and segregated in trust by the Company (if the Company shall act
as its own paying agent); provided that, if such Securities, or portions
thereof, are to be redeemed prior to maturity thereof, notice of such
redemption shall have been given as in Article Fourteen provided or provision
satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.08 unless proof satisfactory to the Company and the trustee is
presented that any such Securities are held by bona fide holders in due course.
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, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.01.
"Securityholder", "holder of Securities", or other similar terms,
shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor; (ii) all
capital lease obligations of such obligor; (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such obligor and all obligations of such
obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
such obligor for the reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) of other
Persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any lien on any
property or asset of such obligor (whether or not such obligation is assumed by
such obligor), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Securities, and (2) any indebtedness
between or among such obligor and its Affiliates, including all other debt
securities and guarantees in respect of those debt securities, issued to (x)
any Comcast Cable Trust or (y) any other trust, or a trustee of such trust,
partnership or other entity affiliated with the Company which is a financing
vehicle of the Company (a "Financing Entity") in connection with the issuance
by such Financing Entity of preferred securities.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of
this definition, "voting stock" means shares, interests, participations or
other equivalents in the equity interest (however designated) in such Person
having ordinary voting power for the election of a majority of the directors
(or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article Six hereof, shall
also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture, except as provided
in Section 9.03.
"Trust Securities" shall mean Common Securities and Preferred
Securities of a Comcast Cable Trust.
"U.S. Government Obligations" shall mean 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 payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Yield to Maturity" shall mean the yield to maturity on a series of
Securities, calculated at the time of issuance of such series of Securities, or
if applicable, at the most recent redetermination of interest on such series
and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution and as set forth in
an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or all as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities 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, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ]
as Trustee
By:
---------------------------
Authorized Officer
SECTION 2.03. 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 up to the aggregate
principal amount of securities of that series from time to time authorized by
or pursuant to a Board Resolution of the Company or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series, there shall be established in or pursuant to a Board Resolution of
the Company and set forth in an Officers' Certificate of the Company or
established in one or more indentures supplemental:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which 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 2.07, 2.08, 2.09, 9.04 or 14.03);
(3) the date or dates on which the principal of and premium, if any,
on 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 interest may be determined,
the date or dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable or the manner of determination of
such Interest Payment Dates and the record dates for the determination of
holders to whom interest is payable on any such Interest Payment Dates;
(5) the place or places where the principal of, and premium, if any,
and any interest on Securities of the series shall be payable;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Securityholder thereof and the price or prices
at which and the period or periods within which the price or prices at which,
and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.01 or
provable in bankruptcy pursuant to Section 5.02;
(11) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(12) the form of the Securities of the series including the form of
the Certificate of Authentication of such series;
(13) any trustee, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Securities of such series;
(14) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities, and whether beneficial
owners of interests in any such Global Securities may exchange such interests
for other Securities of such series in the manner provided in Section 2.07, and
the manner and the circumstances under which and the place or places where any
such exchanges may occur if other than in the manner provided in Section 2.07,
and any other terms of the series relating to the global nature of the Global
Securities of such series and the exchange, registration or transfer thereof
and the payment of any principal thereof, or interest or premium, if any,
thereon; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by its Chairman of the Board of Directors, the Chairman, any
Vice Chairman, the President, the Executive Vice President, any Senior Vice
President, the Treasurer or any Assistant Treasurer, without any further action
by the Company hereunder. 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 Section
6.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution or Resolutions relating thereto
and, if applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary
of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.01 and 2.03, respectively; and
(4) an Opinion of Counsel prepared in accordance with Section 5.01
which shall also state:
(a) that the form of such Securities has been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(b) that the terms of such Securities have been established by or
pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.03 in conformity with
the provisions of this Indenture;
(c) that such Securities, 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;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of the Securities have been complied with
and that authentication and delivery of the Securities by the Trustee
will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing holders.
SECTION 2.05. Date and Denomination of Securities.
The Securities shall be issuable as registered Securities without
coupons and in such denominations as shall be specified as contemplated by
Section 2.03. In the absence of any such specification with respect to the
Securities of any series, the Securities of such Series shall be issuable in
the denominations of $1,000 and any multiple thereof. The Securities shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Company executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Security shall be dated the date of its authentication, shall
bear interest, if any, from such date and shall be payable on such dates, in
each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such
interest installment. In the event that any Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and prior to
such Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Security of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (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 such Security 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 not be more than 15 nor 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 Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are registered on
such special record date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities 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 Trustees of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.06. Execution of Securities.
The Securities shall be signed in the name and on behalf of the
Company by the facsimile signature of its Chairman of the Board of Directors,
the Chairman, any Vice Chairman, the President, the Executive Vice President,
any Senior Vice President, the Treasurer or any Assistant Treasurer, under its
corporate seal which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise, and which need not be attested.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee or the
Authenticating Agent, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Securities had not ceased to be such officer of the Company; and any Security
may be signed on behalf of the Company by such persons as, at the actual date
of the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Securities.
Subject to Section ?, Securities of any series may be exchanged for a
like aggregate principal amount of Securities of the same series of other
authorized denominations. Securities to be exchanged may be surrendered at the
principal office of the Trustee or at any office or agency to be maintained by
the Company for such purpose as provided in Section 3.02, and the Company or
the Trustee shall execute and register and the Trustee or the Authenticating
Agent shall authenticate and deliver in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive. Upon due presentment for registration of transfer of any Security of
any series at the principal office of the Trustee or at any office or agency of
the Company maintained for such purpose as provided in Section 3.02, the
Company or the Trustee shall execute and register and the Trustee or the
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of the same series for a
like aggregate principal amount. Registration or registration of transfer of
any Security by the Trustee or by any agent of the Company appointed pursuant
to Section 3.02, and delivery of such Security, shall be deemed to complete the
registration or registration of transfer of such Security.
The Company or the Trustee shall keep, at the principal office of the
Trustee, a register for each series of Securities issued hereunder in which,
subject to such reasonable regulations as it may prescribe, the Company or the
Trustee shall register all Securities and shall register the transfer of all
Securities as in this Article Two provided. Such register shall be in written
form or in any other form capable of being converted into written form within a
reasonable time.
All Securities presented for registration of transfer or for exchange
or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of (a) any Security for a period of 15 days next preceding
the date of selection of Securities of such series for redemption, or (b) any
Securities of any series selected, called or being called for redemption in
whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company shall execute, and upon its request
the Trustee shall authenticate and deliver, a new Security of the same series
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. In case any Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the
provisions of this Section 2.08 by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the same
series duly issued hereunder. All Securities shall be held and owned upon the
express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities of any series the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every such temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Securities. Without
unreasonable delay the Company will execute and deliver to the Trustee or the
Authenticating Agent definitive Securities and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the
principal office of the Trustee or at any office or agency maintained by the
Company for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and deliver in exchange for such
temporary Securities a like aggregate principal amount of such definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that in case of any such exchange involving
a registration of transfer the Company may require payment of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in
relation thereto. 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 the same series authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Securities Paid, etc.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, shall, if surrendered to the Company or
any paying agent, be surrendered to the Trustee and promptly canceled by it,
or, if surrendered to the Trustee or any Authenticating Agent, shall be
promptly canceled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy canceled Securities and shall deliver a
certificate of such destruction to the Company. If the Company shall 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.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.07, the Trustee will
authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. In addition, the Company may at
any time determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Securities of such series. In such event the
Company will execute and subject to Section 2.07, the Trustee, upon receipt of
an Officers, Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such
series in exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid by mailing checks for such interest payable to the order of the
holders of Securities entitled thereto as they appear on the registry books of
the Company.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities of each series may be presented for payment, an office or
agency where the Securities of that Series may be presented for registration of
transfer and for exchange as in this Indenture provided and an office or agency
where notices and demands to or upon the Company in respect of the Securities
of that Series or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Until otherwise designated from time to time by the
Company in a notice to the Trustee, or specified as contemplated by Section
2.03, any such office or agency for all of the above purposes shall be the
office or agency of the Trustee. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
principal office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provision of this Section 3.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest, if any,
on the Securities of such series (whether such sums have been paid to
it by the Company or by any other obligor on the Securities of such
series) in trust for the benefit of the holders of the Securities of
such series; and
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of and premium, if any, or interest,
if any, on the Securities of such series when the same shall be due
and payable.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest, if
any, on the Securities of any series, set aside, segregate and hold in trust
for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal, premium or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by the
Company (or by any other obligor under the Securities of such series) to make
any payment of the principal of and premium, if any, or interest, if any, on
the Securities of such series when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Trustee or any paying agent hereunder, as
required by this Section 3.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before ______ __ in each
year (beginning with _____ __, 1998), so long as Securities of any series are
outstanding hereunder, an Officers' Certificate stating that in the course of
the performance by the signers of their duties as officers of the Company they
would normally have knowledge of any default by the Company in the performance
of any covenants contained herein, stating whether or not they have knowledge
of any such default and, if so, specifying each such default of which the
signers have knowledge and the nature thereof.
SECTION 3.06. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.07. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.
SECTION 3.08. Limitation on Dividends; Transactions with Affiliates.
If Securities are issued to a Comcast Cable Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such Comcast Cable
Trust and (i) there shall have occurred any event that would constitute an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Preferred Securities Guarantee or Common
Securities Guarantee relating to such Comcast Cable Trust, then (a) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of
Comcast Cable Common Stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans, (ii) as a result of a
reclassification of Comcast Cable capital stock or the exchange or conversion
of one class or series of Comcast Cable capital stock for another class or
series of Comcast Cable capital stock or (iii) the purchase of fractional
interests in shares of Comcast Cable capital stock pursuant to the conversion
or exchange provisions of such Comcast capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company which rank pari passu
with or junior to such Securities.
SECTION 3.09. Covenants as to Comcast Cable Trusts.
In the event Securities are issued to a Comcast Cable Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Comcast Cable Trust, for so long as such Trust Securities remain
outstanding, the Company will (i) maintain 100% direct or indirect ownership of
the Common Securities of such Comcast Cable Trust; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities, (ii) use its reasonable efforts
to cause such Comcast Cable Trust (a) to remain a business trust, except in
connection with a distribution of Securities, the redemption of all of the
Trust Securities of such Comcast Cable Trust or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration of such Comcast Cable
Trust, and (b) to otherwise continue not to be treated as an association
taxable as a corporation or partnership for United States federal income tax
purposes and (iii) to use its reasonable efforts to cause each holder of Trust
Securities to be treated as owning an individual beneficial interest in the
Securities.
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) on a monthly basis on each regular record date for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of such series of Securities as of
such record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company, of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, except that no such lists need be furnished so long as
the Trustee is in possession thereof by reason of its acting as Security
registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Securities (1) contained in the most recent list furnished to it
as provided in Section 4.01 or (2) received by it in the capacity of Securities
registrar (if so acting) hereunder. The Trustee may destroy any list furnished
to it as provided in Section 4.01 upon receipt of a new list so furnished.
(b) In case 3 or more holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least 6 months preceding the date of
such application, and such application states that the applicants desire to
communicate with other holders of Securities of such series or with holders of
all Securities with respect to their rights under this Indenture or under such
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within 5 business days after the receipt of such application, at its election,
either:
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, or
(ii) inform such applicants as to the approximate number of
holders of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within 5 days after such
tender, the Trustee shall mail to such applicants and file with the Securities
and Exchange Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of Securities of
such series or all Securities, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If said Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining 1
or more of such objections, said Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Securities, by receiving and holding the
same, agrees with Company and the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with the provisions of subsection (b) of this
Section 4.02, 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 said subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Securities and
Exchange 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 said Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and said Commission, in
accordance with rules and regulations prescribed from time to time by said
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsections (a) and (b) of this Section
4.03 as may be required by rules and regulations prescribed from time to time
by the Securities and Exchange Commission.
SECTION 4.04. Reports by the Trustee.
(a) On or before May 15 in every year in which any of the Securities
are outstanding, the Trustee shall transmit to the Securityholder of each
series of securities for which such Trustee is appointed, as hereinafter in
this Section 4.04 provided, a brief report dated as of a date convenient to the
Trustee no more than 60 nor less than 45 days prior thereto with respect to:
(i) its eligibility under Section 6.09, and its qualification
under Section 6.08, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under such
Sections, a written statement to such effect;
(ii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to state such advances if such
advances so remaining unpaid aggregate not more than [__] of 1% of the
principal amount of the Securities for any series outstanding on the
date of such report;
(iii) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraph
(2), (3), (4) or (6) of subsection (b) of Section 6.13;
(iv) the property and funds, if any, physically in the possession
of the Trustee, as such, on the date of such report;
(v) any additional issue of Securities which the Trustee has not
previously reported; and
(vi) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 5.08.
(b) the Trustee shall transmit to the Securityholders for each
series, as hereinafter provided, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such),
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 4.04 (or, if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of such series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of Securities for such series outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) reports pursuant to this Section 4.04 shall be transmitted by
mail, first class postage prepaid to all holders of Securities as the names and
addresses of such holders appear upon the Security register.
(d) a copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any applicable series are listed and also
with the Securities and Exchange Commission. The Company will notify the
Trustee when and as the Securities of any series become listed on any stock
exchange.
(e) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
In case one or more of the following Events of Default with respect to
Securities of any series or such other events as may be established with
respect to the Securities of that series as contemplated by Section 2.03 hereof
shall have occurred and be continuing:
(a) default in the payment of any interest upon any Securities of
that series when it becomes due and payable, and continuance of such default
for a period of 30 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of any
indenture supplemental hereto, shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of all or any part of the principal of (or
premium, if any, on) any Securities of that series as and when the same shall
become due and payable either at maturity, upon redemption (including
redemption for the sinking fund), by declaration or otherwise; provided,
however, that a valid extension of the maturity of such Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any; or
(c) 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 and other than those set forth exclusively in terms of
any particular series of Securities established as contemplated in this
Indenture), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the holders of at least 25% in
principal amount of the outstanding Securities 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
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs and
such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(f) In the event Securities are issued to a Comcast Cable Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Comcast Cable Trust, such Comcast Cable Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of Securities to
holders of Trust Securities in liquidation of their interests in such Comcast
Cable Trust, (ii) the redemption of all of the outstanding Trust Securities of
such Comcast Cable Trust or (iii) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Comcast Cable
Trust.
If an Event of Default occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of that
series then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all Securities of that series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of and premium, if any, on any and all Securities of such
series (or of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series, (or at
the respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the
non-payment of the principal of or premium, if any, on Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein -- then and in every such case the holders of a
majority in aggregate principal amount of the Securities of such series (or of
all the Securities, as the case may be) then outstanding, by written notice to
the Company and to the Trustee, may waive all defaults with respect to that
series (or with respect to all Securities, as the case may be, in such case,
treated as a single class) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Securities of any series
as and when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of or premium, if any, on any of the Securities of any
series as and when the same shall have become due and payable, whether at
maturity of the Securities of that series or upon redemption or by declaration
or otherwise -- then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law and, if the Securities are held by a Comcast Cable Trust or a trustee of
such trust, without duplication of any other amounts paid by Comcast Cable
Trust or trustee in respect thereof) upon the overdue installments of interest
at the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities of any
series under Title 11, United States Code, or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and interest (or, if the
Securities of that series are Original Issue Discount Securities such portion
of the principal amount as may be specified in the terms of that series) owing
and unpaid in respect of the Securities of such series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a result
of negligence or bad faith) and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities or any series in any election of a trustee or
a standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar functions in
comparable proceedings, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities of any series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the holders of
the Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Securities, and it shall not be necessary to make any holders of
the Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable
to such series and reasonable compensation to the Trustee, its agents,
attorneys and counsel, and of all other expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of its negligence or bad
faith;
Second: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article Fifteen;
Third: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall not have become due and be unpaid, to
the payment of the amounts then due and unpaid upon Securities of such series
for principal (and premium, if any), and interest on the Securities of such
series, in respect of which or for the benefit of which money has been
collected, ratably, without preference of priority of any kind, according to
the amounts due on such Securities for principal (and premium, if any) and
interest, respectively.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security of any series shall have any right by virtue
of or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities of that series then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the taker and holder
of every Security with every other taker and holder and the Trustee, that no
one or more holders of Securities of any series 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 holder of Securities,
or to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of
(premium, if any) and interest, if any, on such Security, on or after the same
shall have become due and payable, or to institute suit for the enforcement of
any such payment, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such
series with every other such taker and holder and the Trustee, that no one or
more holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such series, and no delay or omission of
the Trustee or of any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article Five or by law to
the Trustee or to the Securityholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, however, that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine that the
action so directed would be unjustly prejudicial to the holders not taking part
in such direction or if the Trustee being advised by counsel determines that
the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of any series of the Securities, or of all the
Securities, as the case may be, the holders of a majority in aggregate
principal amount of the Securities of that series at the time outstanding may
on behalf of the holders of all of the Securities of such series waive any past
default or Event of Default including any default established pursuant to
Section 2.03 and its consequences except a default (a) in the payment of
principal of, premium, if any, or interest on any of the Securities, (b) in
respect of covenants or provisions hereof which cannot be modified or amended
without the consent of the holder of each Security affected, or (c) a default
of the covenants contained in Section 3.06; provided, however, that if the
Securities of such series are held by a Comcast Cable Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities
of the applicable Comcast Cable Trust shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the
Holder of each outstanding Security is required, such waiver shall not be
effective until each holder of the Trust Securities of the applicable Comcast
Cable Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon. Upon any such waiver the
Company, the Trustee and the holders of the Securities of that series (or of
all Securities, as the case may be) shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.07, said default or Event of Default
shall for all purposes of the Securities of that series (or of all Securities,
as the case may be) and this Indenture be deemed to have been cured and to be
not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities of any series, mail to all Securityholders of
that series, as the names and addresses of such holders appear upon the
Security register, notice of all defaults with respect to that series known to
the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term "defaults" for the purpose of this Section 5.08 being
hereby defined to be the events specified in clauses (a), (b), (c), (d), (e)
and (f) of Section 5.01, not including periods of grace, if any, provided for
therein, and irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any of the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series; and provided further , that in the case of any
default of the character specified in Section 5.01(c) no such notice to
Securityholders of such series shall be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.09 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Securities of that series outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security against the
Company on or after the same shall have become due and payable.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to securities of that series and after the curing or waiving of all
Events of Default which may have occurred, with respect to securities of that
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
Securities of a series and after the curing or waiving of all Events of Default
with respect to that series which may have occurred
(i) the duties and obligations of the Trustee with respect to
Securities of a series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations with respect
to such series as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(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, consent, order, bond, note, debenture 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
Board Resolution may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of not less than a majority in principal amount of the outstanding
Securities of the series affected thereby; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; 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 (including
any Authenticating Agent) or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.05. Moneys to Be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by the Chairman of the Board of Directors, the
President or a Vice President or the Treasurer or an Assistant Treasurer of the
Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ and
any amounts paid by the Trustee to any Authenticating Agent pursuant to Section
6.14) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.
The obligations of the Company under this Section 6.06 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Securities.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.09 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.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of such resignation to the Company and by mailing notice
thereof to the holders of the applicable series of Securities at their
addresses as they shall appear on the Security register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
or trustees with respect to the applicable series by written instrument, in
duplicate, executed by order of its Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed with
respect to any series of Securities and have accepted appointment within 30
days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least 6 months may, subject to the provisions of Section 5.09, on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur --
(i) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 6.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least 6 months, or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(iii) 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, the Company may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, executed by order of the
Board of Directors, 1 copy of which instrument shall be delivered to
the Trustee so removed and 1 copy to the successor trustee, or,
subject to the provisions of Section 5.09, any Securityholder who has
been a bona fide holder of a Security or Securities of the applicable
series for at least 6 months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time outstanding may at any time remove the
Trustee with respect to such series and nominate a successor trustee with
respect to the applicable series of Securities or all series, as the case may
be, which shall be deemed appointed as successor trustee with respect to the
applicable series unless within 10 days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Securityholder of
the applicable series, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee with respect
to such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee with respect to all or any
applicable series shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor
trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 6.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring trustee
thereunder. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Company, the retiring trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which 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 any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and 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 trustee hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
trustee.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities of any applicable series at
their addresses as they shall appear on the Security register. If the Company
fails to mail such notice within 10 days after the acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
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
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the 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 certificates shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate
Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 3.11(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 3.11(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 3.11(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be 1 or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on its behalf and subject to
its direction in the authentication and delivery of Securities of any series
issued upon exchange or transfer thereof as fully to all intents and purposes
as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities of such series; provided, that the Trustee
shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of
Securities of any series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or Territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually pursuant to law or
the requirements of such authority, then for the purposes of this Section 6.14
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 an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or
more or all series of Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any Authenticating Agent with respect to one or more or all series of
Securities by giving written notice of termination to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent with respect
to the applicable series eligible under this Section 6.14, shall give written
notice of such appointment to the Company and shall mail notice of such
appointment to all holders of the applicable series of Securities as the names
and addresses of such holders appear on the Security register. Any successor
Authenticating Agent with respect to all or any series upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities with respect to such series of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments, subject to Section 6.06. Any
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such in accordance with the directions of the Trustee.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities of any or
all series may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall
deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security registrar may deem the person in whose name
such Security shall be registered upon the Security register to be, and may
treat him as, the absolute owner of such Security (whether or not such Security
shall be overdue) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Securities
which the Trustee knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as out- standing
for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Securities and
that the pledgee is not the Company or any such other obligor or person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In the case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Security specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial number of which is shown by the evidence to be included in the
Securities the holders of which have consented to such action may, by filing
written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Security (or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such action taken
by the holder of any Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Security, and of any Security
issued in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Security or any Security issued in
exchange or substitution therefor.
ARTICLE 8
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Eight for
any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article Five;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of such Securities
under any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders of any
or all series to take any action specified in Section 8.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as
the Trustee shall determine. Notice of every meeting of the Securityholders of
any or all series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Securities of each series affected at their addresses as they
shall appear on the Securities of each series affected register. Such notice
shall be mailed not less than 20 nor more than 180 days prior to the date fixed
for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders of any or
all series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place in said Borough of Manhattan for such meeting and may call such
meeting to take any action authorized in Section 8.01, by mailing notice
thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person
shall (a) be a holder of one or more Securities with respect to which the
meeting is being held or (b) a person appointed by an instrument in writing as
proxy by a holder of one or more such Securities. The only persons who shall be
entitled to be present or to speak at any meeting of Securityholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of Securities 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 think fit.
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 Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders 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 majority vote of the
meeting.
Subject to the provisions of Section 7.04, at any meeting each holder
of Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to 1 vote for each $1,000 principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Securities held or
represented by him; 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 other than by virtue of Securities held by
him or instruments in writing as aforesaid duly designating him as the person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the Securities
held or represented by them. The permanent chairman of the meeting shall
appoint 2 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 triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Securityholders 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 1 or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and 1 of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Securityholders.
The Company, when authorized by a resolution of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent
of the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Ten hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Securities (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 for the benefit of such series) as the Board of Directors and the
Trustee shall consider to be for the protection of the holders of such
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not adversely
affect the interests of the holders of the Securities;
(e) to add to, delete from, or revise the terms of Securities of any
series as permitted by Section 2.01 and 2.03, including, without limitation,
any terms relating to the issuance, exchange, registration or transfer of
Securities issued in whole or in part in the form of one or more global
Securities and the payment of any principal thereof, or interest or premium, if
any, thereon;
(f) 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
6.11;
(g) to make any change that does not adversely affect the rights of
any Securityholder in any material respect;
(h) to provide for the issuance of and establish the form and terms
and conditions of the Securities of any series, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
or any series of Securities, or to add to the rights of the holders of any
series of Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series affected by such supplemental
indenture (voting as a class), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Securities of each series so
affected; provided, however, that no such supplemental indenture shall without
the consent of the holders of each security then outstanding and affected
thereby (i) extend the fixed maturity of any Security of any series, or reduce
the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or reduce any amount payable
on redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the
Securities, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, or impair or affect the right of any Securityholder
to institute suit for payment thereof or the right of repayment, if any, at the
option of the holder, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of each Security then affected provided, further, that
if the Securities of such series are held by a Comcast Cable Trust or a trustee
of such trust, such supplemental indenture shall not be effective until the
holders of a majority in liquidation preference of Trust Securities of the
applicable Trust shall have consented to such supplemental indenture; provided
further, that if the consent of the Holder of each outstanding Security is
required, such supplemental indenture shall not be effective until each holder
of the Trust Securities of the applicable Comcast Cable Trust shall have
consented to such supplemental indenture.
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 Securityholders of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture or the
Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture. The Trustee may receive an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this
Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article Nine shall comply with the Trust Indenture Act, as then in effect. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article Nine, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article Nine.
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.
SECTION 10.01. Company May Consolidate, Etc. on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company, as the
case may be) organized and validly existing under the laws of the United States
of America or any jurisdiction thereof, or successive consolidations or mergers
in which the Company, as the case may be, or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company, as the case may be, or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company, as the case may
be, or its successor or successors) organized and validly existing under the
laws of the United States of America or any jurisdiction thereof authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agree that, upon any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment, in the case of the Company,
of the principal of (premium, if any) and interest on all of the Securities of
all series in accordance with the terms of each series, according to their
tenor and the due and punctual performance and observance of all the covenants
and conditions of this Indenture with respect to each series or established
with respect to such series to be kept or performed by the Company as the case
may be, shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by
the entity formed by such consolidation, or into which the Company, as the case
may be, shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. Successor Corporation to be Substitute for Company.
In case of any such consolidation, merger, conveyance or transfer and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon the
Securities. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Comcast Cable
Communications, Inc., any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Indentures had been issued at
the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, conveyance or transfer, and any assumption, permitted or required by
the terms of this Article Ten complies with the provisions of this Article Ten.
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) and not theretofore canceled, or (b) all the
Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Securities (other
than any Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.08) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or
redemption date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of, and premium, if any, or interest on the
Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04 hereof shall survive until such Securities shall
mature and be paid. Thereafter, Sections 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture, the Company, however, hereby agreeing to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the
Trustee in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 11.04. Return of Unclaimed Money.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of, and premium, if any, or interest on Securities
and not applied but remaining unclaimed by the holders of Securities for 3
years after the date upon which the principal of, and premium, if any, or
interest on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
written demand; and the holder of any of the Securities shall thereafter look
only to the Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its respective obligations with respect to any series of Securities on the
91st day after the applicable conditions set forth below have been satisfied
with respect to any series of Securities at any time after the applicable
conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined below) as
trust funds intrust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination of (i) and (ii), sufficient, in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee and the Defeasance Agent, if any, to pay and discharge each
installment of principal (including any mandatory sinking fund payments) of,
and interest and premium, if any, on, the outstanding Securities of such series
on the dates such installments of principal, interest or premium are due;
(2) if the Securities of such series are then listed on any national
securities exchange, the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that the exercise
of the option under this Section 11.05 would not cause such Securities to be
delisted from such exchange;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit; and
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that holders of
the Securities of such series will not recognize income, gain or loss for
United States Federal income tax purposes as a result of the exercise of the
option under this Section 11.05 and will be subject to United States Federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and, in the
case of the Securities of such series being Discharged, such opinion shall be
accompanied by a private letter ruling to that effect received from the United
States Internal Revenue Service or a revenue ruling pertaining to a comparable
form of transaction to that effect published by the United States Internal
Revenue Service.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of holders of Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest and premium, if any, on such Securities when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations
of the Trustee necessary to enable the Trustee to act hereunder. In the event
such a Defeasance Agent is appointed pursuant to this section, the following
conditions shall apply:
1. The Trustee shall have approval rights over the document appointing
such Defeasance Agent and the document setting forth such Defeasance Agent's
rights and responsibilities;
2. The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U. S. Government Obligations
to meet the applicable conditions set forth in this Section 11.05;
3. The Trustee shall determine whether the Company shall be deemed to
have been Discharged from its respective obligations with respect to any series
of Securities.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 12.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation of the Company, either directly or through the Company or any
successor corporation of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company, as the case may be, and
as to any successor corporation.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for the
purpose) to the Company, 1105 North Market Street, Wilmington, Delaware 19801,
Attention: Treasurer. Any notice, direction, request or demand by any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the office of
the Trustee, addressed to the Trustee, [ ].
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers 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 have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 13.07. Legal Holiday.
In any case where the date of payment of interest on or principal of
the Securities will be in The City of New York, New York a legal holiday or a
day on which banking institutions are authorized by law to close, the payment
of such interest on or principal of the Securities need not be made on such
date but may be made on the next succeeding day not in the City a legal holiday
or a day on which banking institutions are authorized by law to close, with the
same force and effect as if made on the date of payment and no interest shall
accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterpart.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, as the case may be, will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and inures
to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by
Comcast Cable Trust or a trustee of such trust, if the Institutional Trustee of
such Trust fails to enforce its rights under this Indenture as the holder of
the series of Securities held as the assets of such Comcast Cable Trust any
holder of Preferred Securities may institute legal proceedings directly against
the Company to enforce such Institutional Trustee's rights under this Indenture
without first instituting any legal proceedings against such Institutional
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest or principal on the applicable
series of Securities on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), the Company
acknowledges that a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal of or
interest on the applicable series of Securities having a principal amount equal
to the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the applicable series of
Securities.
ARTICLE 14
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Securities
of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
SECTION 14.02. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Securities of any series in accordance
with their terms, it shall fix a date for redemption and shall mail a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the holders of Securities of such series so to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
register. Such mailing shall be by first class mail. The notice if mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Securities of such series are to be
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, and that on
and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. If less than all the Securities of such series are to be
redeemed the notice of redemption shall specify the numbers of the Securities
of that series to be redeemed. In case any Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of that series in principal amount equal to the unredeemed portion
thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee or
with 1 or more paying agents an amount of money sufficient to redeem on the
redemption date all the Securities so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption.
If less than all the Securities of a series are to be redeemed, the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities of that
series to be redeemed and the Trustee shall select, in such manner as in its
sole discretion it shall deem appropriate and fair, the Securities of that
series or portions thereof (in integral multiples of $1,000, except as
otherwise set forth in the applicable form of Security) to be redeemed.
SECTION 14.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.02 or
Section 14.04, the Securities or portions of Securities of the series with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities of
any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities at a place of payment specified in said notice,
the said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Security or Securities of
such series of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
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". The last date on which any such payment may be made is
herein referred to as a "sinking fund payment date".
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 (a) deliver to the Trustee Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Securities of that
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of optional sinking
fund payments pursuant to the next succeeding paragraph, in each case in
satisfaction of all or any part of any mandatory sinking fund payment, provided
that such Securities have not been previously so credited. Each such Security
so delivered or applied as a credit shall be credited at the sinking fund
redemption price for such Securities and the amount of any mandatory sinking
fund shall be reduced accordingly. If the Company intends so to deliver or
credit such Securities with respect to any mandatory sinking fund payment it
shall deliver to the Trustee at least 60 days prior to the next succeeding
sinking fund payment date for such series (a) a certificate signed by the
Treasurer or an Assistant Treasurer of the Company specifying the portion of
such sinking fund payment, if any, to be satisfied by payment of cash and the
portion of such sinking fund payment, if any, which is to be satisfied by
delivering and crediting such Securities and (b) any Securities to be so
delivered. All Securities so delivered to the Trustee shall be canceled by the
Trustee and no Securities shall be authenticated in lieu thereof. If the
Company fails to deliver such certificate and Securities at or before the time
provided above, the Company shall not be permitted to satisfy any portion of
such mandatory sinking fund payment by delivery or credit of Securities.
At its option the Company may pay into the sinking fund for the
retirement of Securities of any particular series, on or before each sinking
fund payment date for such series, any additional sum in cash as specified by
the terms of such series of Securities. If the Company intends to exercise its
right to make any such optional sinking fund payment, it shall deliver to the
Trustee at least 60 days prior to the next succeeding sinking fund payment date
for such Series a certificate signed by the Treasurer or an Assistant Treasurer
of the Company stating that the Company intends to exercise such optional right
and specifying the amount which the Company intends to pay on such sinking fund
payment date. If the Company fails to deliver such certificate at or before the
time provided above, the Company shall not be permitted to make any optional
sinking fund payment with respect to such sinking fund payment date. To the
extent that such right is not exercised in any year it shall not be cumulative
or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made
in cash plus any unused balance of any preceding sinking fund payments made in
cash shall exceed $50,000 (or a lesser sum if the Company shall so request)
with respect to the Securities of any particular series, it shall be applied by
the Trustee or 1 or more paying agents on the next succeeding sinking fund
payment date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Securities of such series to be given in substantially
the manner and with the effect provided in Sections 14.02 and 14.03 for the
redemption of Securities of that series in part at the option of the Company,
except that the notice of redemption shall also state that the Securities of
such series are being redeemed for the sinking fund. Any sinking fund moneys
not so applied or allocated by the Trustee or any paying agent to the
redemption of Securities of that series shall be added to the next cash sinking
fund payment received by the Trustee or such paying agent and, together with
such payment, shall be applied in accordance with the provisions of this
Section 14.04. Any and all sinking fund moneys held by the Trustee or any
paying agent on the maturity date of the Securities of any particular series,
and not held for the payment or redemption of particular Securities of such
series, shall be applied by the Trustee or such paying agent, together with
other moneys, if necessary, to be deposited sufficient for the purpose, to the
payment of the principal of the Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to
the Trustee or to 1 or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Securities
of a series with sinking fund moneys, and the Trustee shall not mail any notice
of redemption of Securities for such series by operation of the sinking fund,
during the continuance of a default in payment of interest on such Securities
or of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph), except that if the notice of redemption of any
Securities shall theretofore have been mailed in accordance with the provisions
hereof, the Trustee or any paying agent shall redeem such Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such paying
agent for that purpose in accordance with the terms of this Article Fourteen.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into the sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of all such Securities;
provided, however, that in case such Event of Default or default, shall have
been cured or waived as provided herein, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date on which such moneys
may be applied pursuant to the provisions of this Section 14.04.
ARTICLE 15
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder and under any supplemental indenture or by any resolutions by the
Board of Directors ("Additional Provisions") by such Securityholder's
acceptance thereof likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article Fifteen; and each holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Securities issued hereunder and under any Additional Provisions
shall, to the extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, as the case may be, or in the event that
the maturity of any Senior Indebtedness of the Company, as the case may be, has
been accelerated because of a default, then, in either case, no payment shall
be made by the Company with respect to the principal (including redemption and
sinking fund payments) of, or premium, if any, or interest on the Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company
on account of the principal (and premium, if any) or interest on the
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article Fifteen, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under the Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Securityholders
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of
the Company, as the case may be, remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fifteen with respect to the Securities to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided for
in Article Ten of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Ten of this Indenture.
Nothing in Section 15.02 or in this Section 15.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section ? of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Securityholders shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or the Trustee would be entitled except for the provisions of this Article
Fifteen, and no payment over pursuant to the provisions of this Article Fifteen
to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of
the Securities, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness. It is understood that the provisions of this Article
Fifteen are and are intended solely for the purposes of defining the relative
rights of the holders of the Securities, on the one hand, and the holders of
such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, any Additional Provisions or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Company, as the
case may be, other than the holders of Senior Indebtedness of the Company, as
the case may be, nor shall anything herein or therein prevent the Trustee or
the holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under the Indenture, subject to the rights, if any,
under this Article Fifteen of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company, as the case may be,
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee, subject to the provisions of Article Six
of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Company, as the
case may be, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Fifteen.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fifteen and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen or any other provision of this Indenture or
any Additional Provisions, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Fifteen, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Article Six of this Indenture, shall be entitled in all respects
to assume that no such facts exist; provided, however, that if the Trustee
shall not have received the notice provided for in this Section 15.06 at least
two Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of (or premium, if any) or interest on any Debenture), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purposes for which they were received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days
prior to such date.
The Trustee, subject to the provisions of Article Six of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article Fifteen, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture or any Additional Provisions shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fifteen, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article Six of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders,
the Company or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article Fifteen or
otherwise.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company, as the case
may be, with the terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof that any such holder may have or otherwise be charged
with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from
time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article
Fifteen or the obligations hereunder of the holders of the Securities to the
holders of such Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement
in any manner such Senior Indebtedness or any instrument evidencing the same or
any agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case may be, and
any other Person.
[ ] hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions herein above set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized and
their respective corporate seals to be hereunto duly affixed and attested, all
as of the day and year first above written.
COMCAST CABLE COMMUNICATIONS, INC.
By
------------------------------------------
Attest:
By
---------------------------------------
[ ]
By
------------------------------------------
Attest:
By
---------------------------------------
STATE OF )
COUNTY OF ) ss.:
On the _____ day of ________________, 1996 before me personally came,
to me known, who, being by me duly sworn, did depose and say that he resides at
___________________; that he is one of Comcast Cable Communications, Inc., one
of the corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
--------------------------------------------
NOTARY PUBLIC
[seal] Commission expires
--------------------------------------------
NOTARY PUBLIC
[seal] Commission expires
On the _____ day of ________________, 1996, before me personally came,
to me known, who, being by me duly sworn, did depose and say that he resides at
___________________________; that he is one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
--------------------------------------------
NOTARY PUBLIC
[seal] Commission expires
--------------------------------------------
NOTARY PUBLIC
[seal] Commission expires
EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
between
COMCAST CABLE COMMUNICATIONS, INC.
and
[BANK OF MONTREAL TRUST COMPANY]
Dated as of ________ __, 199[_]
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definition of Terms........................ 2
ARTICLE 2
General Terms and Conditions of the Debentures
Section 2.1. Designation and Principal Amount........... 3
Section 2.2. Maturity................................... 3
Section 2.3. Form and Payment........................... 3
Section 2.4. Global Debenture........................... 3
Section 2.5. Interest................................... 5
ARTICLE 3
Redemption of the Debentures
Section 3.1. Special Event Redemption................... 6
Section 3.2. Optional Redemption by Company............. 7
Section 3.3. No Sinking Fund............................ 7
ARTICLE 4
Extension of Interest Payment Period
Section 4.1. Extension of Interest Payment Period....... 7
Section 4.2. Notice of Extension........................ 7
Section 4.3. Limitation of Transactions................. 8
ARTICLE 5
Expenses
Section 5.1. Payment of Expenses........................ 9
Section 5.2. Payment upon Resignation or Removal........ 10
ARTICLE 6
Covenant to List on Exchange
Section 6.1. Listing on an Exchange..................... 10
ARTICLE 7
Form of Debenture
Section 7.1. Form of Debenture.......................... 10
ARTICLE 8
Original Issue of Debentures
Section 8.1. Original Issue of Debentures............... 17
ARTICLE 9
Miscellaneous
Section 9.1. Ratification of Indenture.................. 17
Section 9.2. Trustee Not Responsible for Recitals....... 17
Section 9.3. Governing Law.............................. 17
Section 9.4. Separability............................... 17
Section 9.5. Counterparts............................... 18
FIRST SUPPLEMENTAL INDENTURE, dated as of ____________, 199[_]
(the "First Supplemental Indenture"), between Comcast Cable Communications,
Inc., a Delaware corporation (the "Company"), and [Bank of Montreal Trust
Company] as trustee (the "Trustee") under the Indenture dated as of ________,
199[_] between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its ___% Junior Subordinated Deferrable Interest Debentures due
[___] (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this First Supplemental Indenture;
WHEREAS, Comcast Cable Trust [_], a Delaware statutory business
trust (the "Trust"), has offered to the public $___ million aggregate
liquidation amount of its ___% Guaranteed Trust Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the
Company of $___ million aggregate liquidation amount of its ___% Guaranteed
Trust Common Securities, in $____ million aggregate principal amount of the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Debentures by the Holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees
with the Trustee as follows:
ARTICLE 1
Definitions
Section 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Clearing Agency; (iii) Delaware Trustee;
(iv) Depositary; (v) Dissolution Tax Opinion; (vi) Institutional Trustee;(vii)
No Recognition Opinion; (viii) Preferred Security Certificate; (ix) Pricing
Agreement; (x) Redemption Tax Opinion; Regular Trustees; (xi) Tax Event; and
(xii) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.01(g):
"Additional Interest" shall have the meaning set forth in
Section 2.05.
"Compounded Interest" shall have the meaning set forth in
Section 4.01.
"Declaration" means the Amended and Restated Declaration of
Trust of Comcast Cable Trust [_], a Delaware statutory business trust, dated
as of _________, 199[_].
"Deferred Interest" shall have the meaning set forth in Section
4.01.
"Dissolution Event" means that, as a result of the occurrence
and continuation of a Special Event, the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.01.
"Global Debenture" shall have the meaning set forth in Section
2.04.
"Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.04.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.02.
ARTICLE 2
General Terms and Conditions of the Debentures
Section 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the "___% Junior Subordinated Deferrable Interest Debentures due [___]",
limited in aggregate principal amount to $___ million, which amount shall be
as set forth in any written order of the Company for the authentication and
delivery of Debentures pursuant to Section ___ of the Indenture.
Section 2.2. Maturity.
The Maturity Date is ____________, 2038.
Section 2.3. Form and Payment.
Except as provided in Section 2.04, the Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal and interest on the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided, however,, that
payment of interest may be made at the option of the Company by check mailed
to the Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compounded Interest and Additional Interest, if any) on such Debentures held
by the Institutional Trustee will be made at such place and to such account as
may be designated by the Institutional Trustee.
Section 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global Debenture"),
to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the
Regular Trustees. The Company upon any such presentation shall
execute a Global Debenture in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made
to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be
presented to the Trustee by the Institutional Trustee and any
Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Clearing Agency or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the Trustee
by the Institutional Trustee having an aggregate principal amount
equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at
which time such Preferred Security Certificates will be canceled and a
Debenture, registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with the Indenture and this First Supplemental Indenture. On issue of
such Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Institutional Trustee to the Trustee
will be deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject
to Article II of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Debentures in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures shall no longer be represented by a Global
Debenture. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers Certificate
evidencing such determination by the Company, will authenticate and deliver
the Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall
be canceled by the Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or other- wise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so
registered.
Section 2.5. Interest.
(a) Each Debenture will bear interest at the rate of ___% per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article Four) quarterly in arrears on
[March 31, June 30, September 30 and December 31] of each year (each, an
"Interest Payment Date," commencing on _________ __, 199[_]), to the Person in
whose name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of any Debentures of which the Institutional Trustee is the
Holder of a Global Debenture, shall be the close of business on the Business
Day next preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if the Preferred Securities are no longer in book-entry only form,
except if the Debentures are held by the Institutional Trustee, the Debentures
are not represented by a Global Debenture, the Company may select a regular
record date for such interest installment which shall be any date at least one
Business Day before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in such a 30-day
period. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(c) If, at any time while the Institutional Trustee is the Holder
of any Debentures, the Trust or the Institutional Trustee is required to pay
any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company will pay as additional
interest ("Additional Interest") on the Debentures held by the Institutional
Trustee, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had no
such taxes, duties, assessments or other government charges been imposed.
ARTICLE 3
Redemption of the Debentures
Section 3.1. Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees
shall have been informed by tax counsel rendering the Dissolution Tax Opinion
that a No Recognition Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.02(a) but subject to Section 3.02(b), the
Company shall have the right upon not less than 30 days nor more than 60
days notice to the Holders of the Debentures to redeem the Debentures, in
whole or in part, for cash within 90 days following the occurrence of such
Tax Event (the "90 Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption (the "Redemption Price"), provided
that if at the time there is available to the Company the opportunity to
eliminate, within the 90 Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure which has no
adverse effect on the Company, the Trust or the Holders of the Trust
Securities issued by the Trust, the Company shall pursue such Ministerial
Action in lieu of redemption, and, provided, further, that the Company
shall have no right to redeem the Debentures while the Trust is pursuing
any Ministerial Action pursuant to its obligations under the Declaration.
The Redemption Price shall be paid prior to 12:00 noon, New York time, on
the date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the
date such Redemption Price is to be paid.
Section 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.02(b) and to the
provisions of Article XIV of the Indenture, except as otherwise may be
specified in this First Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after _________, ___, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Optional Redemption Price"). Any redemption pursuant
to this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the Holder of the Debentures, at the Optional Redemption Price. If
the Debentures are only partially redeemed pursuant to this Section 3.02, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided, that if at the time of redemption the Debentures are
registered as a Global Debenture, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Debentures held
by each Holder of Debenture to be redeemed. The Optional Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York time, on the date such
Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
Section 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE 4
Extension of Interest Payment Period
Section 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarters (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.01, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded Interest
(together, "Deferred Interest") that shall be payable to the Holders of the
Debentures in whose names the Debentures are registered in the Security
Register on the first record date after the end of the Extended Interest
Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such period
together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the maturity date of the Debentures.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
Section 4.2. Notice of Extension.
(a) If the Institutional Trustee is the only registered Holder of
the Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Institutional Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued by the
Trust are payable, or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to the New York
Stock Exchange or other applicable self-regulatory organization or to holders
of the Preferred Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10 Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock Exchange
or other applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.02 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.01.
Section 4.3. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.01, or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock or make any guarantee payment with respect thereto (other
than (i) purchases or acquisitions of shares of its common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans, (ii) as a result of a reclassification of its capital stock for
another class or series of its capital stock or (iii) the purchase of
fractional interests in shares of its capital stock pursuant to the conversion
or exchange provisions of such capital stock or security being converted or
exchanged) or make any guarantee payment with respect thereto and (b) the
Company shall not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures.
ARTICLE 5
Expenses
Section 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of the
Trust Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section [7.06] of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, [the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith),] the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
Section 5.2. Payment upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise
stated, the Company shall pay to the Trustee all amounts accrued to the date
of such termination, removal or resignation. Upon termination of the
Declaration or the removal or resignation of the Delaware Trustee or the
Institutional Trustee, as the case may be, pursuant to Section 5.06 of the
Declaration, the Company shall pay to the Delaware Trustee or the
Institutional Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE 6
Covenant to List on Exchange
Section 6.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Preferred Securities issued by the Trust upon a Dissolution Event, the Company
will use its best efforts to list such Debentures on the New York Stock
Exchange, Inc. or on such other exchange as the Preferred Securities are then
listed.
ARTICLE 7
Form of Debenture
Section 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary) may be registered
except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.] No.
______________________________
COMCAST CABLE COMMUNICATIONS, INC.
___% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE [____]
COMCAST CABLE COMMUNICATIONS, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________
Dollars ($___________) on _________, ____, and to pay interest on said
principal sum from ____________, 199[_], or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest
has been paid or duly provided for, quarterly (subject to deferral as set
forth herein) in arrears on [March 31, June 30, September 30 and December 31]
of each year commencing _________, 199[_], at the rate of ___% per annum until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. The
amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the business day
next preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF
THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL Debenture
- -- which shall be the close of business on the ____ business day next
preceding such Interest Payment Date.] Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Debentures 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 Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture.
The principal of (and premium, if any) and the interest on this Debenture shall
be payable at the office or agency of the Trustee maintained for that purpose
in any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
Security Register. Notwithstanding the foregoing, so long as the Holder of this
Debenture is the Institutional Trustee, the payment of the principal of (and
premium, if any) and interest on this Debenture will be made at such place and
to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated
--------------------
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title
Attest:
By:
---------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
[Bank of Montreal Trust Company]
as Trustee
By:
---------------------------------
Authorized Officer
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures
of the Company (herein sometimes referred to as the "Debentures"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of _______, 199[_], duly executed and
delivered between the Company and [Bank of Montreal Trust Company] as Trustee
(the "Trustee"), as supplemented by the First Supplemented Indenture dated as
of _______, 199[_], between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount
as specified in said First Supplemental Indenture.
Because of the occurrence and continuation of a Tax Event, in
certain circumstances, this Debenture may become due and payable at the
principal amount together with any interest accrued thereon (the "Redemption
Price"). The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as the Company
determines. The Company shall have the right to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in part at any
time on or after ________, ____ (an "Optional Redemption"), or at any time in
certain circumstances upon the occurrence of a Tax Event, at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, to the date of such redemption (the "Optional Redemption Price").
Any redemption pursuant to this paragraph will be made upon not less than 30
days nor more than 60 days notice, at the Optional Redemption Price. If the
Debentures are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided that if, at the time of redemption,
the Debentures are registered as a Global Debenture, the Depositary shall
determine the principal amount of such Debentures held by each Debentureholder
to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Debentures; provided, however, that no such supplemental indenture
shall (i) extend the fixed maturity of any Debentures of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the Holder of each Debenture so affected, or
(ii) reduce the aforesaid percentage of Debentures, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holders of each Debenture then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Debentures of any series at the time
outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debentures of such series. Any such consent or waiver by the registered
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term of
the Debentures and from time to time to extend the interest payment period of
such Debentures for up to 20 consecutive quarters (an "Extended Interest
Payment Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Debentures to the extent that payment of such interest is
enforceable under applicable law); provided that no Extended Interest Payment
Period may last beyond the maturity date of the Debentures. Before the
termination of any such Extended Interest Payment Period, the Company may
further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend the maturity date of
the Debentures. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee
in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[The Debentures of this series are issuable only in registered
form without coupons in denominations of $25 and any integral multiple
thereof.] [This Global Debenture is exchangeable for Debentures in definitive
form only under certain limited circumstances set forth in the Indenture.
Debentures of this series so issued are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.]
As provided in the Indenture and subject to certain limitations [herein and]
therein set forth, Debentures of this series [so issued] are exchangeable for
a like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE 8
Original Issue of Debentures
Section 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $___________
may, upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its Vice Chairman, its President, or
any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE 9
Miscellaneous
Section 9.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
Section 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
Section 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
Section 9.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
Section 9.5. Counterparts.
This First Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title
[Seal]
Attest:
By:
---------------------------------
[BANK OF MONTREAL TRUST
COMPANY]
as Trustee
By:
---------------------------------
Name:
Title
Attest:
By:
---------------------------------
EXHIBIT 4.4
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Cable Trust I desiring to
form a business trust pursuant to Section 3810 of the Delaware Business Trust
Act, 12 Del. C. Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the
"Trust") is "Comcast Cable Trust I".
(b) The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows:
Puglisi Associates
850 Library Avenue
Suite 204
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective as of the date
of filing.
Dated: October 30, 1998
/s/ Donald J. Puglisi
--------------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ W. E. Dordelman
--------------------------------------
Name: W. E. Dordelman
Title: Trustee
EXHIBIT 4.5
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Cable Trust II desiring to
form a business trust pursuant to Section 3810 of the Delaware Business Trust
Act, 12 Del. C. Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the
"Trust") is "Comcast Cable Trust II".
(b) The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows:
Puglisi Associates
850 Library Avenue
Suite 204
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective as of the date
of filing.
Dated: October 30, 1998
/s/ Donald J. Puglisi
--------------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ W. E. Dordelman
--------------------------------------
Name: W. E. Dordelman
Title: Trustee
EXHIBIT 4.6
CERTIFICATE OF TRUST
The undersigned, the trustees of Comcast Cable Trust III desiring to
form a business trust pursuant to Section 3810 of the Delaware Business Trust
Act, 12 Del. C. Section 3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the
"Trust") is "Comcast Cable Trust III".
(b) The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows:
Puglisi Associates
850 Library Avenue
Suite 204
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective as of the date
of filing.
Dated: October 30, 1998
/s/ Donald J. Puglisi
--------------------------------------
Name: Donald J. Puglisi
Title: Trustee
/s/ W. E. Dordelman
--------------------------------------
Name: W. E. Dordelman
Title: Trustee
EXHIBIT 4.7
DECLARATION OF TRUST
Comcast Cable Trust I
Dated as of October 30, 1998
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions................................ 1
ARTICLE 2
Organization
Section 2.1. Name....................................... 4
Section 2.2. Office..................................... 4
Section 2.3. Purpose.................................... 4
Section 2.4. Authority.................................. 4
Section 2.5. Title to Property of the Trust............. 4
Section 2.6. Powers of the Trustees..................... 4
Section 2.7. Filing of Certificate of Trust............. 6
Section 2.8. Duration of Trust.......................... 6
Section 2.9. Responsibilities of the Sponsor............ 6
Section 2.10. Declaration Binding on Securities Holders.. 6
ARTICLE 3
Trustees
Section 3.1. Trustees................................... 7
Section 3.2. Regular Trustees........................... 7
Section 3.3. Delaware Trustee........................... 8
Section 3.4. Institutional Trustee...................... 8
Section 3.5. Not Responsible for Recitals or Sufficiency
of Declaration............................. 8
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation................................ 9
Section 4.2. Fiduciary Duty............................. 9
Section 4.3. Indemnification............................ 10
Section 4.4. Outside Businesses......................... 13
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments................................. 14
Section 5.2. Termination of Trust....................... 14
Section 5.3. Governing Law.............................. 14
Section 5.4. Headings................................... 15
Section 5.5. Successors and Assigns..................... 15
Section 5.6. Partial Enforceability..................... 15
Section 5.7. Counterparts............................... 15
DECLARATION OF TRUST
OF
Comcast Cable Trust I
October 30, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
October 30, 1998 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Delaware Business Trust Act for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will
beheld in trust for the exclusive benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
Definitions
Section 1.1. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
written in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the
issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the person to be selected by the Parent
to act as trustee under the Indenture until a successor is appointed thereunder,
and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Parent" means Comcast Cable Communications, Inc., a Delaware
corporation or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE 2
Organization
Section 2.1. Name.
The Trust created by this Declaration is named "Comcast Cable
Trust I." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
Section 2.2. Office.
The address of the principal office of the Trust is c/o Comcast
Cable Communications, Inc., 1500 Market Street, Philadelphia, Pennsylvania
19102. At any time, the Regular Trustees may designate another principal
office.
Section 2.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section 2.4. Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Regular Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth
in this Declaration.
Section 2.5. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6. Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national
stock exchange or the Nasdaq Stock Market's National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor relating to the registration of
the Preferred Securities under Section 12(b) of the Exchange
Act; and
(v) execute and enter into an underwriting agreement
and pricing agreement providing for the sale of the Preferred
Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7. Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust in
the form attached hereto as Exhibit A with the Secretary of State of the State
of Delaware.
Section 2.8. Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.02, shall have existence for fifty-five (55) years from the date
hereof.
Section 2.9. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must
be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the class of
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities.
Section 2.10. Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
ARTICLE 3
Trustees
Section 3.1. Trustees.
The number of Trustees initially shall be two (2), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however, that the number of Trustees shall in no event be less than two (2);
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity that has its principal place of business in the State of
Delaware (the "Delaware Trustee"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (a "Regular Trustee").
Section 3.2. Regular Trustees.
The initial Regular Trustees shall be:
William E. Dordelman
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of,
any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which
the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 2.06 provided, that, the registration statement
referred to in Section 2.06(b)(i), including any amendments thereto, shall
be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.06.
Section 3.3. Delaware Trustee.
The initial Delaware Trustee shall be:
Donald J. Puglisi
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust or of the Regular Trustees except such acts as the Delaware
Trustee is expressly obligated or authorized to undertake under this
Declaration or the Business Trust Act and except for the gross negligence or
willful misconduct of the Delaware Trustee.
Section 3.4. Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust
Indenture Act of 1939, as amended, by the execution of an amendment to this
Declaration executed by the Regular Trustees, the Sponsor, the Institutional
Trustee and the Delaware Trustee.
Section 3.5. Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Declaration or
bylaw, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which distributions to holders of Securities
might properly be paid.
Section 4.2. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such
terms, considering in each case the relative interest of
each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence
of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
Section 4.3. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason
of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or
matter as to which such Company Indemnified Person shall have
been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action,
suit or proceeding referred to in paragraphs (i) and (ii) of
this Section 4.03(a), or in defense of any claim, issue or
matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 4.03(a) (unless ordered by a court) shall be
made by the Debenture Issuer only as authorized in the specific
case upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he has
met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the
Regular Trustees by a majority vote of a quorum consisting of
such Regular Trustees who were not parties to such action, suit
or proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or
(3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.03(a)
shall be paid by the Debenture Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Debenture
Issuer as authorized in this Section 4.03(a). Notwithstanding
the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of disinterested
Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust, that,
based upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such determination is
made, such Company Indemnified Person acted in bad faith or in a
manner that such person did not believe to be in or not opposed
to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances
where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common or
Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.03(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement of
expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer
or Preferred Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.03(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each
Company Indemnified Person who serves in such capacity at any
time while this Section 4.03(a) is in effect. Any repeal or
modification of this Section 4.03(a) shall not affect any rights
or obligations then existing. (vii) The Debenture Issuer or the
Trust may purchase and maintain insurance on behalf of any
person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section
4.03(a).
(vii) For purposes of this Section 4.03(a), references
to "the Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section
4.03(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.03(a) shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified Person
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person 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 (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.03(b) shall survive the termination
of this Declaration.
Section 4.4. Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee
shall be obligated to present any particular investment or other opportunity
to the Trust even if such opportunity is of a character that, if presented to
the Trust, could be taken by the Trust, and any Covered Person, the Sponsor
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person and the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by
all of the Regular Trustees and the Sponsor.
Section 5.2. Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(b) upon the bankruptcy of the Sponsor;
(i) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the revocation
of the Sponsor's charter or of the Trust's certificate of
trust;
(ii) upon the entry of a decree of judicial dissolution
of the Sponsor, or the Trust; and
(iii) before the issue of any Securities, with the
consent of all of the Regular Trustees and the Sponsor; and
(c) as soon as is practicable after the occurrence of an event
referred to in Section 5.02(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
Section 5.3. Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 5.4. Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
/s/ W. E. Dordelman
---------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
---------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CABLE
COMMUNICATIONS, INC.,
as Sponsor
By:/s/ W. E. Dordelman
------------------------------
Name: William E. Dordelman
Title: Vice President
EXHIBIT 4.8
DECLARATION OF TRUST
Comcast Cable Trust II
Dated as of October 30, 1998
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions................................ 1
ARTICLE 2
Organization
Section 2.1. Name....................................... 4
Section 2.2. Office..................................... 4
Section 2.3. Purpose.................................... 4
Section 2.4. Authority.................................. 4
Section 2.5. Title to Property of the Trust............. 4
Section 2.6. Powers of the Trustees..................... 4
Section 2.7. Filing of Certificate of Trust............. 6
Section 2.8. Duration of Trust.......................... 6
Section 2.9. Responsibilities of the Sponsor............ 6
Section 2.10. Declaration Binding on Securities Holders.. 6
ARTICLE 3
Trustees
Section 3.1. Trustees................................... 7
Section 3.2. Regular Trustees........................... 7
Section 3.3. Delaware Trustee........................... 8
Section 3.4. Institutional Trustee...................... 8
Section 3.5. Not Responsible for Recitals or Sufficiency
of Declaration............................. 8
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation................................ 9
Section 4.2. Fiduciary Duty............................. 9
Section 4.3. Indemnification............................ 10
Section 4.4. Outside Businesses......................... 13
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments................................. 14
Section 5.2. Termination of Trust....................... 14
Section 5.3. Governing Law.............................. 14
Section 5.4. Headings................................... 15
Section 5.5. Successors and Assigns..................... 15
Section 5.6. Partial Enforceability..................... 15
Section 5.7. Counterparts............................... 15
DECLARATION OF TRUST
OF
Comcast Cable Trust I
October 30, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as
of October 30, 1998 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Delaware Business Trust Act for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will
beheld in trust for the exclusive benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
Definitions
Section 1.1. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them
in this Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
written in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the
issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the person to be selected by the
Parent to act as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Parent" means Comcast Cable Communications, Inc., a Delaware
corporation or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE 2
Organization
Section 2.1. Name.
The Trust created by this Declaration is named "Comcast Cable
Trust I." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
Section 2.2. Office.
The address of the principal office of the Trust is c/o Comcast
Cable Communications, Inc., 1500 Market Street, Philadelphia, Pennsylvania
19102. At any time, the Regular Trustees may designate another principal
office.
Section 2.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section 2.4. Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Regular Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth
in this Declaration.
Section 2.5. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6. Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange
Act; and
(v) execute and enter into an underwriting agreement
and pricing agreement providing for the sale of the
Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7. Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust in
the form attached hereto as Exhibit A with the Secretary of State of the State
of Delaware.
Section 2.8. Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.02, shall have existence for fifty-five (55) years from the date
hereof.
Section 2.9. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must
be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the class
of Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities.
Section 2.10. Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
ARTICLE 3
Trustees
Section 3.1. Trustees.
The number of Trustees initially shall be two (2), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
however, that the number of Trustees shall in no event be less than two (2);
provided further that one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity that has its principal place of business in the State of
Delaware (the "Delaware Trustee"); provided further that there shall be at
least one trustee who is an employee or officer of, or is affiliated with the
Parent (a "Regular Trustee").
Section 3.2. Regular Trustees.
The initial Regular Trustees shall be:
William E. Dordelman
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of,
any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to execute pursuant
to Section 2.06 provided, that, the registration statement referred to in
Section 2.06(b)(i), including any amendments thereto, shall be signed by a
majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.06.
Section 3.3. Delaware Trustee.
The initial Delaware Trustee shall be:
Donald J. Paglisi
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust or of the Regular Trustees except such acts as the Delaware
Trustee is expressly obligated or authorized to undertake under this
Declaration or the Business Trust Act and except for the gross negligence or
willful misconduct of the Delaware Trustee.
Section 3.4. Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust
Indenture Act of 1939, as amended, by the execution of an amendment to this
Declaration executed by the Regular Trustees, the Sponsor, the Institutional
Trustee and the Delaware Trustee.
Section 3.5. Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Declaration or
bylaw, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which distributions to holders of Securities
might properly be paid.
Section 4.2. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such
terms, considering in each case the relative interest of
each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence
of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
Section 4.3. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement
of an action without admission of liability) in defense of
any action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.03(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to
the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred
by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 4.03(a) (unless ordered by a court) shall
be made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification of
the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular
Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section
4.03(a) shall be paid by the Debenture Issuer in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this
Section 4.03(a). Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a determination is
reasonably and promptly made (i) by the Regular Trustees by
a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached
his duty to the Trust or its Common or Preferred Security
Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.03(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust
or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
All rights to indemnification under this Section 4.03(a)
shall be deemed to be provided by a contract between the
Debenture Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section
4.03(a) is in effect. Any repeal or modification of this
Section 4.03(a) shall not affect any rights or obligations
then existing. (vii) The Debenture Issuer or the Trust may
purchase and maintain insurance on behalf of any person who
is or was a Company Indemnified Person against any liability
asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or
not the Debenture Issuer would have the power to indemnify
him against such liability under the provisions of this
Section 4.03(a).
(vii) For purposes of this Section 4.03(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity
as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the
provisions of this Section 4.03(a) with respect to the
resulting or surviving entity as he would have with respect
to such constituent entity if its separate existence had
continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.03(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person 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 (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.03(b) shall survive the termination
of this Declaration.
Section 4.4. Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee
shall be obligated to present any particular investment or other opportunity
to the Trust even if such opportunity is of a character that, if presented to
the Trust, could be taken by the Trust, and any Covered Person, the Sponsor
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person and the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by
all of the Regular Trustees and the Sponsor.
Section 5.2. Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(b) upon the bankruptcy of the Sponsor;
(i) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the revocation
of the Sponsor's charter or of the Trust's certificate of
trust;
(ii) upon the entry of a decree of judicial dissolution
of the Sponsor, or the Trust; and
(iii) before the issue of any Securities, with the consent
of all of the Regular Trustees and the Sponsor; and
(c) as soon as is practicable after the occurrence of an event
referred to in Section 5.02(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
Section 5.3. Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 5.4. Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
/s/ W. E. Dordelman
-----------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
-----------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CABLE
COMMUNICATIONS, INC.,
as Sponsor
By: /s/ W. E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Vice President
EXHIBIT 4.9
DECLARATION OF TRUST
Comcast Cable Trust III
Dated as of October 30, 1998
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions................................ 1
ARTICLE 2
Organization
Section 2.1. Name....................................... 4
Section 2.2. Office..................................... 4
Section 2.3. Purpose.................................... 4
Section 2.4. Authority.................................. 4
Section 2.5. Title to Property of the Trust............. 4
Section 2.6. Powers of the Trustees..................... 4
Section 2.7. Filing of Certificate of Trust............. 6
Section 2.8. Duration of Trust.......................... 6
Section 2.9. Responsibilities of the Sponsor............ 6
Section 2.10. Declaration Binding on Securities Holders. 6
ARTICLE 3
Trustees
Section 3.1. Trustees................................... 7
Section 3.2. Regular Trustees........................... 7
Section 3.3. Delaware Trustee........................... 8
Section 3.4. Institutional Trustee...................... 8
Section 3.5. Not Responsible for Recitals or Sufficiency
of Declaration............................. 8
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation................................ 9
Section 4.2. Fiduciary Duty............................. 9
Section 4.3. Indemnification............................ 10
Section 4.4. Outside Businesses......................... 13
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments................................. 14
Section 5.2. Termination of Trust....................... 14
Section 5.3. Governing Law.............................. 14
Section 5.4. Headings................................... 15
Section 5.5. Successors and Assigns..................... 15
Section 5.6. Partial Enforceability..................... 15
Section 5.7. Counterparts............................... 15
DECLARATION OF TRUST
OF
Comcast Cable Trust I
October 30, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
October 30, 1998 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Delaware Business Trust Act for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and
that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will
beheld in trust for the exclusive benefit of the holders, from time to time,
of the securities representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
Definitions
Section 1.1. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them
in this Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and
Sections are to Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be
written in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the
issuer of the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the person to be selected by the
Parent to act as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into between the
Parent and the Debenture Trustee and any indenture supplemental thereto
pursuant to which the Debentures are to be issued.
"Parent" means Comcast Cable Communications, Inc., a Delaware
corporation or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set
out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the
Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE 2
Organization
Section 2.1. Name.
The Trust created by this Declaration is named "Comcast Cable
Trust I." The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
Section 2.2. Office.
The address of the principal office of the Trust is c/o Comcast
Cable Communications, Inc., 1500 Market Street, Philadelphia, Pennsylvania
19102. At any time, the Regular Trustees may designate another principal
office.
Section 2.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section 2.4. Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Regular Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Regular Trustees as set forth
in this Declaration.
Section 2.5. Title to Property of the Trust .
Legal title to all assets of the Trust shall be vested in the
Trust.
Section 2.6. Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities and the issuance of the
Securities shall be limited to a one-time, simultaneous issuance of both
Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange
Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred
Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for such
services;
(d) to incur expenses which are necessary or incidental to
carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
Section 2.7. Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the filing of the Certificate of Trust for the Trust in
the form attached hereto as Exhibit A with the Secretary of State of the State
of Delaware.
Section 2.8. Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.02, shall have existence for fifty-five (55) years from the date
hereof.
Section 2.9. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must
be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities.
Section 2.10. Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
ARTICLE 3
Trustees
Section 3.1. Trustees.
The number of Trustees initially shall be two (2), and
thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Sponsor. The
Sponsor is entitled to appoint or remove without cause any Trustee at any
time; provided, however, that the number of Trustees shall in no event be
less than two (2); provided further that one Trustee, in the case of a
natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity that has its
principal place of business in the State of Delaware (the "Delaware
Trustee"); provided further that there shall be at least one trustee who is
an employee or officer of, or is affiliated with the Parent (a "Regular
Trustee").
Section 3.2. Regular Trustees.
The initial Regular Trustees shall be:
William E. Dordelman
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of,
any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which
the Regular Trustees have the power and authority to cause the Trust to
execute pursuant to Section 2.06 provided, that, the registration statement
referred to in Section 2.06(b)(i), including any amendments thereto, shall
be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 2.06.
Section 3.3. Delaware Trustee.
The initial Delaware Trustee shall be:
Donald J. Puglisi
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. Notwithstanding anything herein to the
contrary, the Delaware Trustee shall not be liable for the acts or omissions to
act of the Trust or of the Regular Trustees except such acts as the Delaware
Trustee is expressly obligated or authorized to undertake under this
Declaration or the Business Trust Act and except for the gross negligence or
willful misconduct of the Delaware Trustee.
Section 3.4. Institutional Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust
Indenture Act of 1939, as amended, by the execution of an amendment to this
Declaration executed by the Regular Trustees, the Sponsor, the Institutional
Trustee and the Delaware Trustee.
Section 3.5. Not Responsible for Recitals or Sufficiency of
Declaration.
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
ARTICLE 4
Limitation of Liability of Holders of Securities, Trustees or Others
Section 4.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Declaration or
bylaw, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which distributions to holders of Securities
might properly be paid.
Section 4.2. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such
terms, considering in each case the relative interest of
each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence
of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
Section 4.3. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement
of an action without admission of liability) in defense of
any action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.03(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to
the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred
by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 4.03(a) (unless ordered by a court) shall
be made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification of
the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular
Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section
4.03(a) shall be paid by the Debenture Issuer in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this
Section 4.03(a). Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a determination is
reasonably and promptly made (i) by the Regular Trustees by
a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached
his duty to the Trust or its Common or Preferred Security
Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.03(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust
or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
All rights to indemnification under this Section 4.03(a)
shall be deemed to be provided by a contract between the
Debenture Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section
4.03(a) is in effect. Any repeal or modification of this
Section 4.03(a) shall not affect any rights or obligations
then existing. (vii) The Debenture Issuer or the Trust may
purchase and maintain insurance on behalf of any person who
is or was a Company Indemnified Person against any liability
asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or
not the Debenture Issuer would have the power to indemnify
him against such liability under the provisions of this
Section 4.03(a).
(vii) For purposes of this Section 4.03(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity
as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the
provisions of this Section 4.03(a) with respect to the
resulting or surviving entity as he would have with respect
to such constituent entity if its separate existence had
continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 4.03(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person 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 (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 4.03(b) shall survive the termination
of this Declaration.
Section 4.4. Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the holders of Securities shall have
no rights by virtue of this Declaration in and to such independent ventures or
the income or profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor or the Delaware Trustee
shall be obligated to present any particular investment or other opportunity
to the Trust even if such opportunity is of a character that, if presented to
the Trust, could be taken by the Trust, and any Covered Person, the Sponsor
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person and the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for or may act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 5
Amendments, Termination, Miscellaneous
Section 5.1. Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by
all of the Regular Trustees and the Sponsor.
Section 5.2. Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(b) upon the bankruptcy of the Sponsor;
(i) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor or the revocation
of the Sponsor's charter or of the Trust's certificate of
trust;
(ii) upon the entry of a decree of judicial dissolution
of the Sponsor, or the Trust; and
(iii) before the issue of any Securities, with the
consent of all of the Regular Trustees and the Sponsor; and
(c) as soon as is practicable after the occurrence of an event
referred to in Section 5.02(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
Section 5.3. Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 5.4. Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 5.5. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
/s/ W. E. Dordelman
-----------------------------------
Name: William E. Dordelman
Title: Regular Trustee
/s/ Donald J. Puglisi
-----------------------------------
Name: Donald J. Puglisi
Title: Delaware Trustee
COMCAST CABLE
COMMUNICATIONS, INC.,
as Sponsor
By: /s/ W. E. Dordelman
-------------------------------
Name: William E. Dordelman
Title: Vice President
EXHIBIT 4.10
AMENDED AND RESTATED DECLARATION
OF TRUST
COMCAST CABLE TRUST [_]
Dated as of __________ __, 199[_]
TABLE OF CONTENTS
Page
----
ARTICLE 1
Interpretation and Definitions
Section 1.1. Definitions................................ 2
ARTICLE 2
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application........... 8
Section 2.2. Lists of Holders of Securities............. 9
Section 2.3. Reports by the Institutional Trustee....... 9
Section 2.4. Periodic Reports to Institutional Trust.... 9
Section 2.5. Evidence of Compliance with Conditions
Precedent.................................. 9
Section 2.6. Events of Default; Waiver.................. 10
Section 2.7. Event of Default; Notice................... 12
ARTICLE 3
Organization
Section 3.1. Name....................................... 12
Section 3.2. Office..................................... 13
Section 3.3. Purpose.................................... 13
Section 3.4. Authority.................................. 13
Section 3.5. Title to Property of the Trust............. 13
Section 3.6. Powers and Duties of the Regular Trustees.. 13
Section 3.7. Prohibition of Actions by the Trust and the
Trustees................................... 16
Section 3.8. Powers and Duties of the Institutional
Trustee.................................... 17
Section 3.9. Certain Duties and Responsibilities of the
Institutional Trustee...................... 20
Section 3.10. Certain Rights of Institutional Trustee... 22
Section 3.11. Delaware Trustee.......................... 24
Section 3.12. Execution of Documents.................... 23
Section 3.13. Not Responsible for Recitals or Issuance
of Securities............................. 25
Section 3.14. Duration of Trust......................... 25
Section 3.15. Mergers................................... 25
ARTICLE 4
Sponsor
Section 4.1. Sponsor's Purchase of Common Securities.... 27
Section 4.2. Responsibilities of the Sponsor............ 27
ARTICLE 5
Trustees
Section 5.1. Number of Trustees......................... 28
Section 5.2. Delaware Trustee........................... 29
Section 5.3. Institutional Trustee; Eligibility......... 29
Section 5.4. Certain Qualifications of Regular Trustees
and Delaware Trustee Generally............. 30
Section 5.5. Regular Trustees........................... 30
Section 5.6. Delaware Trustee........................... 31
Section 5.7. Appointment, Removal and Resignation of
Trustees................................... 31
Section 5.8. Vacancies among Trustees................... 33
Section 5.9. Effect of Vacancies........................ 33
Section 5.10. Meetings................................... 33
Section 5.11. Delegation of Power........................ 34
Section 5.12. Merger, Conversion, Consolidation or
Succession to Business..................... 34
ARTICLE 6
Distributions
Section 6.1. Distributions.............................. 34
ARTICLE 7
Issuance of Securities
Section 7.1. General Provisions Regarding Securities.... 35
Section 7.2. Paying Agent............................... 36
ARTICLE 8
Termination of Trust
Section 8.1. Termination of Trust....................... 36
ARTICLE 9
Transfer of Interests
Section 9.1. Transfer of Securities..................... 37
Section 9.2. Transfer of Certificates................... 38
Section 9.3. Deemed Security Holders.................... 38
Section 9.4. Book Entry Interests....................... 38
Section 9.5. Notices to Clearing Agency................. 39
Section 9.6. Appointment of Successor Clearing Agency... 39
Section 9.7. Definitive Preferred Securities
Certificates............................... 39
Section 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates............................... 40
ARTICLE 10
Limitation of Liability of Holders of Securities, Trustees or Others
Section 10.1. Liability................................. 41
Section 10.2. Exculpation............................... 41
Section 10.3. Fiduciary Duty............................ 42
Section 10.4. Indemnification........................... 43
Section 10.5. Outside Businesses........................ 46
ARTICLE 11
Accounting
Section 11.1. Fiscal Year............................... 47
Section 11.2. Certain Accounting Matters................ 47
Section 11.3. Banking................................... 48
Section 11.4. Withholding............................... 48
ARTICLE 12
Amendments and Meetings
Section 12.1. Amendments................................ 49
Section 12.2. Meetings of the Holders of Securities;
Action by Written Consent................. 51
ARTICLE 13
Representations of Institutional Trustee and Delaware Trustee
Section 13.1. Representations and Warranties of
Institutional Trustee..................... 52
Section 13.2. Representations and Warranties of Delaware
Trustee................................... 53
ARTICLE 14
Miscellaneous
Section 14.1. Notices................................... 54
Section 14.2. Governing Law............................. 55
Section 14.3. Intention of the Parties.................. 55
Section 14.4. Headings.................................. 56
Section 14.5. Successors and Assigns.................... 56
Section 14.6. Partial Enforceability.................... 56
Section 14.7. Counterparts.............................. 56
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
COMCAST CABLE TRUST [ ]
_________ ___, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of __________ __, 1998, by the Trustees (as defined herein),
the Sponsor (as defined herein) and by the holders, from time to time, of
undivided beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Sponsor established Comcast Cable
Trust [_] (the "Trust"), a trust under the Delaware Business Trust Act
pursuant to a Declaration of Trust dated as of [ ], 1998 (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on _________ ____, 1998, for the sole purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1
Interpretation and Definitions
Section 1.1. Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them
in this Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and
Annexes and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.04.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of
Delivery" under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.01(a).
"Common Securities Guarantee" means the guarantee agreement to
be dated as of ___________, 1998 of the Sponsor in respect of the Common
Securities.
"Common Security" has the meaning specified in Section 7.01.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b)
any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Preferred Guarantee
Trustee shall, at any particular time, be principally administered, which
office at the date of execution of this Agreement is located at [
].
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Comcast Cable Communications, Inc., a
Delaware corporation, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture Trustee" means [Bank of Montreal Trust Company], a [
] banking corporation, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor
trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be held by the Institutional Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.02.
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.04.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event
of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.04(b).
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of _________, 199[_],
among the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.03.
"Institutional Trustee Account" has the meaning set forth in
Section 3.08(c).
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I
hereto.
"Legal Action" has the meaning set forth in Section 3.06(g).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Ministerial Action" has the meaning set forth in the terms of
the Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.02.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement
to be dated as of ______, 199[_], of the Sponsor in respect of the Preferred
Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
"Pricing Agreement" means the pricing agreement between the
Trust, the Debenture Issuer, and the underwriters designated by the Regular
Trustees with respect to the offer and sale of the Preferred Securities.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.01.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer
of the Corporate Trust Office of the Institutional 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 that officer's
knowledge of and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Comcast Cable Communications, Inc., a Delaware
corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section
2.06(a)(ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for
the offering and sale of Preferred Securities in the form of Exhibit C.
ARTICLE 2
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to
the extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 2.2. Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of
the Holders of the Securities ("List of Holders") as of such record date,
provided that neither the Sponsor nor the Regular Trustees on behalf of the
Trust shall be obligated to provide such List of Holders at any time the List
of Holders does not differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Institutional Trustee. The Institutional
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Institutional Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Institutional Trustee.
Within 60 days after May 15 of each year, the Institutional
Trustee shall provide to the Holders of the Preferred Securities such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by Section 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
Section 2.4. Periodic Reports to Institutional Trust.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Institutional Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not available under the Indenture, the Event of
Default under the Declaration shall also not be available; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture
Act. Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or other default or an
Event of Default with respect to the Preferred Securities or impair any
right consequent thereon. Any waiver by the Holders of the Preferred
Securities of an Event of Default with respect to the Preferred Securities
shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not available under the Indenture, except where
the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as
provided below in this Section 2.06(b), the Event of Default
under the Declaration shall also not be available; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities
are deemed to have waived such Event of Default under the
Declaration as provided below in this Section 2.06(b), the
Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to
the Common Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the
Institutional Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.06(b) shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this
Section 2.06(b), upon such waiver, any such default shall cease to exist
and any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.06(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
Section 2.7. Event of Default; Notice.
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with
respect to the Securities actually known to a Responsible Officer of the
Institutional Trustee, unless such defaults have been cured before the giving
of notice (the term "defaults" for the purposes of this Section 2.07(a) being
hereby defined to be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment established for
the Debentures, the Institutional Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Institutional
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections ____ and ____ of the
Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a Responsible
Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual
knowledge.
ARTICLE 3
Organization
Section 3.1. Name.
The Trust is named "Comcast Cable Trust [_]," as such name may
be modified from time to time by the Regular Trustees following written notice
to the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
Section 3.2. Office.
The address of the principal office of the Trust is c/o Comcast
Cable Communications, Inc., 1105 North Market Street, Wilmington, Delaware,
19801. On ten Business Days' written notice to the Holders of Securities, the
Regular Trustees may designate another principal office.
Section 3.3. Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section 3.4. Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Institutional Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the purposes of the Trust.
An action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers
shall constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
Section 3.5. Title to Property of the Trust.
Except as provided in Section 3.08 with respect to the
Debentures and the Institutional Trustee Account or as otherwise provided in
this Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an undivided beneficial interest in the assets of
the Trust.
Section 3.6. Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities, and the issuance of
Securities shall be limited to a simultaneous issuance of both Preferred
Securities and Common Securities on [each] Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the
Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange
Act; and
(v) execute and enter into the Underwriting Agreement
and Pricing Agreement providing for the sale of the
Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale
of the Preferred Securities and the Common Securities; provided, however,
that the Regular Trustees shall cause legal title to the Debentures to be
held of record in the name of the Institutional Trustee for the benefit of
the Holders of the Preferred Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee before
taking or refraining from taking any Ministerial Action in relation to a Tax
Event;
(e) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established, including
and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and exchanges, and
to issue relevant notices to the Holders of Preferred Securities and
Holders of Common Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against
the Trust ("Legal Action"), unless pursuant to Section 3.08(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Institutional Trustee, which certificate may
be executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election
to defer payments of interest on the Debentures by extending the interest
payment period under the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the
laws of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees determine in
their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.06, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes,
provided that such action does not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.06 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.03, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have
none of the powers or the authority of the Institutional Trustee set forth in
Section 3.08.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.06 shall be reimbursed by the Debenture Issuer.
Section 3.7. Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Institutional Trustee) shall cause the Trust
not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in
any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Amended and Restated
Declaration or Annex I, (A) direct the time, method and
place of exercising any trust or power conferred upon the
Debenture Trustee with respect to the Debentures, (B) waive
any past default that is available under the Indenture, (C)
exercise any right to rescind or annul any declaration that
the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have
received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk
that for United States federal income tax purposes the Trust
will not be classified as a grantor trust.
Section 3.8. Powers and Duties of the Institutional Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Institutional Trustee in trust for the
benefit of the Holders of the Securities. The right, title and interest of
the Institutional Trustee to the Debentures shall vest automatically in
each Person who may hereafter be appointed as Institutional Trustee in
accordance with Section 5.07. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right,
title and interest in the Debentures to the Regular Trustees or to the
Delaware Trustee (if the Institutional Trustee does not also act as
Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account")
in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Institutional Trustee
Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section
6.01. Funds in the Institutional Trustee Account shall be
held uninvested until disbursed in accordance with this
Declaration. The Institutional Trustee Account shall be an
account that is maintained with a banking institution the
rating on whose long-term unsecured indebtedness is at least
equal to the rating assigned to the Preferred Securities by
a "nationally recognized statistical rating organization",
as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances
pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the Institutional
Trustee pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal Action
which arises out of or in connection with an Event of Default of which a
Responsible Officer of the Institutional Trustee has actual knowledge or
the Institutional Trustee's duties and obligations under this Declaration
or the Trust Indenture Act; provided however, that if a Declaration Event
of Default has occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or
in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such
Direct Action, the rights of the Holders of the Common Securities Holder
will be subrogated to the rights of such Holder of Preferred Securities to
the extent of any payment made by the Issuer to such Holder of Preferred
Securities in such Direct Action. Except as provided in the preceding
sentences, the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed
and has accepted that appointment in accordance with Section
5.07.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a
Responsible Officer of the Institutional Trustee occurs and is continuing, the
Institutional Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Institutional Trustee at any time
and a successor Paying Agent or additional Paying Agents may be appointed at
any time by the Institutional Trustee.
(i) Subject to this Section 3.08, the Institutional
Trustee shall have none of the duties, liabilities, powers
or the authority of the Regular Trustees set forth in
Section 3.06.
The Institutional Trustee must exercise the powers set forth in
this Section 3.08 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.03, and the Institutional Trustee
shall not take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.03.
Section 3.9. Certain Duties and Responsibilities of the
Institutional Trustee.
(a) The Institutional Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06) of which
a Responsible Officer of the Institutional Trustee has actual knowledge, the
Institutional Trustee shall exercise such of the rights and powers vested in
it by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Institutional Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and the
Institutional Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Institutional Trustee; and
(B) in the absence of bad faith on the part of
the Institutional Trustee, the Institutional Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming
to the requirements of this Declaration; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Institutional Trustee, the
Institutional Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders
of not less than a Majority in liquidation amount of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if it shall have reasonable grounds
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the
Institutional Trustee against such risk or liability is not
reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of
the Debentures and the Institutional Trustee Account shall
be to deal with such property in a similar manner as the
Institutional Trustee deals with similar property for its
own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Institutional Trustee shall not be liable for
any interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.08(c)(i) and except to the extent
otherwise required by law; and
(viii) the Institutional Trustee shall not be responsible
for monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Declaration,
nor shall the Institutional Trustee be liable for default or
misconduct of the Regular Trustees or the Sponsor.
Section 3.10. Certain Rights of Institutional Trustee.
(a) Subject to the provisions of Section 3.09:
(i) the Institutional Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by a Direction or an Officers'
Certificate;
(iii) whenever in the administration of this Declaration,
the Institutional Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Institutional Trustee
(unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Sponsor or the Regular trustees;
(iv) the Institutional Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel
or other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice within
the scope of such experts' area of expertise shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Institutional Trustee shall have the right at any time to
seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the
costs, expenses (including attorneys' fees and expenses and
the expenses of the Institutional Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it
in complying with such request or direction, including such
reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Declaration;
(vii) the Institutional 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, other evidence of indebtedness or other
paper or document, but the Institutional Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians,
nominees or attorneys and the Institutional 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;
(ix) any action taken by the Institutional Trustee or
its agents hereunder shall bind the Trust and the Holders of
the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party
shall be required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance with
any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Institutional
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Institutional
Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Institutional
Trustee under the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in
conclusively relying on or acting in or accordance with such
instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Institutional Trustee shall not be under
any obligation to take any action that is discretionary
under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Institutional Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in
which the Institutional Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to the Institutional Trustee shall be construed to be a
duty.
Section 3.11. Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.02, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth in Section 5.02, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
Section 3.12. Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, a majority of or, if there are
only two, any Regular Trustee or, if there is only one, such Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.06;
provided that, the registration statement referred to in Section 3.06(b)(i),
including any amendments thereto, shall be signed by all of the Regular
Trustees.
Section 3.13. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
Section 3.14. Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence for fifty-five (55) years from the
Closing Date.
Section 3.15. Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Securities, the Delaware Trustee
or the Institutional Trustee, consolidate, amalgamate, merge with or into,
or be replaced by a trust organized as such under the laws of any State;
provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred
Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same
powers and duties as the Institutional Trustee as the Holder
of the Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Securities
(including any Successor Securities) in any material respect
(other than with respect to any dilution of such Holders'
interests in the Preferred Securities as a result of such
merger, consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation
or replacement, the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an
Investment Company;
and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax
purposes;
and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to
the extent provided by the Preferred Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or Successor Entity to be
classified as other than a grantor trust for United States federal income
tax purposes.
ARTICLE 4
Sponsor
Section 4.1. Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
Section 4.2. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must
be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement and
Pricing Agreement providing for the sale of the Preferred Securities.
ARTICLE 5
Trustees
Section 5.1. Number of Trustees.
The number of Trustees initially shall be [four (4)], and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a majority
in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities; provided, however, that,
the number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State
of Delaware (the "Delaware Trustee"); (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor
(a "Regular Trustee"); and (3) one Trustee shall be the Institutional
Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
Section 5.2. Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, provided that, if the Institutional Trustee
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Institutional Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no application.
Section 5.3. Institutional Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes
of this Section 5.03(a)(ii), 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.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.03(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.07(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
[ ]
Section 5.4. Certain Qualifications of Regular Trustees and
Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
Section 5.5. Regular Trustees.
The initial Regular Trustees shall be:
[ ]
[ ]
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any
matter over which the Regular Trustees have power to act, any power of the
Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act or applicable
law, any Regular Trustee is authorized to execute on behalf of the Trust
any documents which the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.06, provided that the
registration statement referred to in Section 3.06, including any
amendments thereto, shall be signed by all of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of
21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.06.
Section 5.6. Delaware Trustee.
The initial Delaware Trustee shall be:
[__________________]
Section 5.7. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.07(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities.
(b)
(i) The Trustee that acts as Institutional Trustee
shall not be removed in accordance with Section 5.07(a)
until a Successor Institutional Trustee has been appointed
and has accepted such appointment by written instrument
executed by such Successor Institutional Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not
be removed in accordance with this Section 5.07(a) until a
successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.02 and 5.04 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and
delivered to the Trust, the Sponsor and the resigning
Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor and
the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.07.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as
provided in this Section 5.07 within 60 days after delivery to the Sponsor
and the Trust of an instrument of resignation, the resigning Institutional
Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a
Successor Institutional Trustee or Successor Delaware Trustee, as the case
may be.
(f) No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Institutional
Trustee or successor Delaware Trustee, as the case may be.
Section 5.8. Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.01, or if the number
of Trustees is increased pursuant to Section 5.01, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.07.
Section 5.9. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of
a Trustee shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.07, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed
upon the Regular Trustees by this Declaration.
Section 5.10. Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such
meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of
the Regular Trustees. In the event there is only one Regular Trustee, any and
all action of such Regular Trustee shall be evidenced by a written consent of
such Regular Trustee.
Section 5.11. Delegation of Power.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.06, including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of
the Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein.
Section 5.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of the Institutional
Trustee or the Delaware Trustee, as the case may be, shall be the successor of
the Institutional Trustee or the Delaware Trustee, as the case may be,
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.
ARTICLE 6
Distributions
Section 6.1. Distributions.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or principal
on the Debentures held by the Institutional Trustee (the amount of any such
payment being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
ARTICLE 7
Issuance of Securities
Section 7.1. General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue
one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Annex I (the "Preferred Securities") and one class of common securities
representing undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Annex I (the "Common Securities.")
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust
by a Regular Trustee. Such signature shall be the manual signature of any
present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be such Regular Trustee; and
any Certificate may be signed on behalf of the Trust by such persons who,
at the actual date of execution of such Security, shall be the Regular
Trustees of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Declaration.
Section 7.2. Paying Agent.
In the event that the Preferred Securities are not in
book-entry only form, the Trust shall maintain in the Borough of Manhattan,
City of New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent"). The Trust may
appoint the Paying Agent and may appoint one or more additional paying agents
in such other locations as it shall determine. The term "Paying Agent"
includes any additional paying agent. The Trust may change any Paying Agent
without prior notice to any Holder. The Trust shall notify the Institutional
Trustee of the name and address of any Agent not a party to this Declaration.
If the Trust fails to appoint or maintain another entity as Paying Agent, the
Institutional Trustee shall act as such. The Trust or any of its Affiliates
may act as Paying Agent. The Trust shall initially act as Paying Agent for the
Preferred Securities and the Common Securities.
ARTICLE 8
Termination of Trust
Section 8.1. Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of a majority in liquidation
amount of the Securities voting together as a single class
to file such certificate of cancellation or the revocation
of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the Sponsor or the
Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance
with the terms of the Securities;
(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been dissolved
in accordance with the terms of the Securities and all of
the Debentures endorsed thereon shall have been distributed
to the Holders of Securities in exchange for all of the
Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.01(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.09 and Article 10 shall
survive the termination of the Trust.
ARTICLE 9
Transfer of Interests
Section 9.1. Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Securities. Any transfer or purported transfer of
any Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article 9, Preferred Securities shall be
freely transferable.
(c) The Sponsor may not transfer the Common Securities.
Section 9.2. Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by
this Declaration.
Section 9.3. Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder
of such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 9.4. Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will
be issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.07. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Preferred
Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04
conflict with any other provisions of this Declaration, the provisions of this
Section 9.04 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry
transfers among the Clearing Agency Participants.
Section 9.5. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until
Definitive Preferred Security Certificates shall have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.07, the Regular
Trustees shall give all such notices and communications specified herein to be
given to the Preferred Security Holders to the Clearing Agency, and shall have
no notice obligations to the Preferred Security Beneficial Owners.
Section 9.6. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to such Preferred Securities.
Section 9.7. Definitive Preferred Securities Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect to
such Preferred Securities; and
(d) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees shall
cause Definitive Certificates to be delivered to Preferred Security Beneficial
Owners in accordance with the instructions of the Clearing Agency. Neither the
Trustees nor the Trust shall be liable for any delay in delivery of such
instructions and each of them may conclusively rely on and shall be protected
in relying on, said instructions of the Clearing Agency. The Definitive
Preferred Security Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Preferred Securities may be listed, or to conform to usage.
Section 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them
harmless.
then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under
this Section 9.08, the Regular Trustees may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
relevant Securities, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
ARTICLE 10
Limitation of Liability of Holders of Securities, Trustees or Others
Section 10.1. Liability.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not
be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to
the Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of the Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
Section 10.2. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by
this Declaration or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's gross negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
Person as to matters the Indemnified Person reasonably believes are within
such other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
Section 10.3. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms,
considering in each the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed
by this Declaration or by applicable law.
Section 10.4. Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust and except
that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement
of an action without admission of liability) in defense of
any action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.04(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to
the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred
by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 10.04(a) (unless ordered by a court) shall
be made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification of
the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular
Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section
10.04(a) shall be paid by the Debenture Issuer in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this
Section 10.04(a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees, counsel or the
Common Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or Common Security Holder reasonably determine that
such person deliberately breached his duty to the Trust or its Common or
Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.04(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust
or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
All rights to indemnification under this Section 10.04(a)
shall be deemed to be provided by a contract between the
Debenture Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section
10.04(a) is in effect. Any repeal or modification of this
Section 10.04(a) shall not affect any rights or obligations
then existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section
10.04(a).
(viii) For purposes of this Section 10.04(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity
as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the
provisions of this Section 10.04(a) with respect to the
resulting or surviving entity as he would have with respect
to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.04(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of
the Institutional Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to
as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person 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 or the trust or trusts
hereunder, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against or investigating any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in
this Section 10.04(b) shall survive the satisfaction and discharge of this
Declaration.
Section 10.5. Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Sponsor or its Affiliates.
ARTICLE 11
Accounting
Section 11.1. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 11.2. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax purposes.
The books of account and the records of the Trust shall be examined by and
reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States
federal income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required
by the Code and the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States
federal income tax return, on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax
returns required to be filed by the Regular Trustees on behalf of the Trust
with any state or local taxing authority.
Section 11.3. Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Institutional Trustee shall be
made directly to the Institutional Trustee Account and no other funds of the
Trust shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
signatories for the Institutional Trustee Account.
Section 11.4. Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE 12
Amendments and Meetings
Section 12.1. Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional
Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment would be
to:
(A) cause the trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(c) at such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only
with such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.01(c) and this Section 12.01 shall not be
amended without the consent of all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities and;
(f) the rights of the holders of the Common Securities under
Article 5 to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.01(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the
Holders; and
(v) to modify, eliminate and add to any provision of
the Amended Declaration to such extent as may be necessary.
Section 12.2. Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms
of the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call
a meeting of the Holders of such class if directed to do so by the Holders of
at least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing
the Security Certificates held by the Holders of Securities exercising the
right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date of
such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without
a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities
having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled to vote
who have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to the Security
Holder for the purpose of taking any action without a
meeting shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other Person
that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides,
the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE 13
Representations of Institutional Trustee and Delaware Trustee
Section 13.1. Representations and Warranties of Institutional
Trustee.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a national banking
association with trust powers, duly organized, validly existing and in good
standing under the laws of the United States, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly authorized by all
necessary corporate action on the part of the Institutional Trustee. The
Declaration has been duly executed and delivered by the Institutional
Trustee, and it constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) the execution, delivery and performance of the
Declaration by the Institutional Trustee does not conflict with or
constitute a breach of the Articles of Organization or By-laws of the
Institutional Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking authority is
required for the execution, delivery or performance by the Institutional
Trustee, of the Declaration.
Section 13.2. Representations and Warranties of Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good standing
under the laws of the State of Delaware, with trust power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The Declaration
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles
of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at
law).
(c) No consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration.
(d) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity
which has its principal place of business in the State of Delaware.
ARTICLE 14
Miscellaneous
Section 14.1. Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
Comcast Cable Trust [_]
c/o Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Attention: _____________
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of
to the Holders of the Securities):
[ ]
[ ]
[ ]
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or such other
address as the Institutional Trustee may give notice of to the Holders of
the Securities):
[ ]
[ ]
[ ]
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as
the Holder of the Common Securities may give notice to the Trust):
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Attention: _______________________
(e) if given to any other Holder, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
Section 14.2. Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 14.3. Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
Section 14.4. Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
Section 14.5. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 14.6. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 14.7. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
_________________________________________
[ ], as Regular Trustee
_________________________________________
[ ], as Regular Trustee
_________________________________________
[ ]as Regular Trustee
[ ], as
Institutional Trustee
By:_______________________________________
Name:
Title:
COMCAST CABLE
COMMUNICATIONS, INC., as Sponsor
By:_______________________________________
Name:
Title:
ANNEX I
TERMS OF
___% TRUST ORIGINATED PREFERRED SECURITIES
___% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust, dated as of _______, 199[_] (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not
defined herein has the meaning set forth in the Declaration or, if not defined
in such Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. [ ] Preferred
Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of [ ] dollars ($[
]) and a liquidation amount with respect to the assets of
the Trust of $25 per preferred security, are hereby
designated for the purposes of identification only as
"_____% Guaranteed Trust Preferred Securities)" ( the
"Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be
substantially in the form of Exhibit A-1 to the Declaration,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed.
(b) Common Securities. [ ] Common Securities of the
Trust with an aggregate liquidation amount with respect to
the assets of the Trust of [ ] dollars ($[ ]) and a
liquidation amount with respect to the assets of the Trust
of $25 per common security, are hereby designated for the
purposes of identification only as "______% Trust Originated
Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall
be substantially in the form of Exhibit A-2 to the
Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be
fixed at a rate per annum of ______% (the "Coupon Rate") of
the stated liquidation amount of $25 per Security, such rate
being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears
for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect
of the Debentures held by the Institutional Trustee and to
the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual
number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative,
will accrue from ________, 1998, and will be payable
quarterly in arrears, on [March 31, June 30, September 30,
and December 31] of each year, commencing on _______, 1998,
except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of
interest by extending the interest payment period from time
to time on the Debentures for a period not exceeding 20
consecutive quarters or extend beyond the maturity date of
the Debentures (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the
Debentures, provided that no Extension Period shall last
beyond the date of maturity of the Debentures. As a
consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions
will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded
quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture
Issuer may further extend such Extension Period; provided
that such Extension Period together with all such previous
and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures.
Payments of accrued Distributions will be payable to Holders
as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a
new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records
of the Trust on the relevant record dates. While the
Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the
relevant payment dates which payment dates correspond to the
interest payment dates on the Debentures. Subject to any
applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading
"Description of the Guaranteed Trust Preferred Securities --
Book-Entry Only Issuance -- The Depository Trust Company" in
the Prospectus Supplement dated ______, 199[_], to the
Prospectus dated ______, 1998 (together, the "Prospectus"),
of the Trust included in the Registration Statement on Form
S-3 of the Sponsor, the Trust and certain other business
trusts. The relevant record dates for the Common Securities
shall be the same record date as for the Preferred
Securities. If the Preferred Securities shall not continue
to remain in book-entry only form, the relevant record dates
for the Preferred Securities, shall conform to the rules of
any securities exchange on which the securities are listed
and, if none, shall be selected by the Regular Trustees,
which dates shall be at least one Business Day but less than
60 Business Days before the relevant payment dates, which
payment dates correspond to the interest payment dates on
the Debentures. Distributions payable on any Securities
that are not punctually paid on any Distribution payment
date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, will cease to be
payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose
name such Securities are registered on the special record
date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are
payable on the Securities is not a Business Day, then
payment of the Distribution payable on such date will be
made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will
be entitled to receive out of the assets of the Trust available for
distribution to Holders of Securities after satisfaction of liabilities of
creditors an amount equal to the aggregate of the stated liquidation amount of
$25 per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Debentures in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution. The Preferred Securities and
Common Securities may only be redeemed if Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities are repaid, redeemed or distributed as set
forth below:
(a) Upon the repayment of the Debentures in whole or
in part, whether at maturity or upon redemption (either at
the option of the Debenture Issuer or pursuant to a Tax
Event as described below), the proceeds from such repayment
or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to
the aggregate principal amount of the Debentures so repaid
or redeemed at a redemption price of $25 per Security plus
an amount equal to accrued and unpaid Distributions thereon
at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30
nor more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed Pro Rata and the Preferred
Securities to be redeemed will be as described in Section
4(f)(ii) below.
(c) If, at any time, a Tax Event or an Investment
Company Event (each as defined below, and each a "Special
Event") shall occur and be continuing the Regular Trustees
shall, except in certain limited circumstances described in
this Section 4(c), dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the
Institutional Trustee, having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued
and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for
payment as the Securities, to be distributed to the Holders
of the Securities in liquidation of such Holders' interests
in the Trust on a Pro Rata basis, within 90 days following
the occurrence of such Special Event (the "90 Day Period");
provided, however, that in the case of the occurrence of a
Tax Event, as a condition of such dissolution and
distribution, the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"),
which opinion may rely on published revenue rulings of the
Internal Revenue Service, to the effect that the Holders of
the Securities will not recognize any gain or loss for
United States federal income tax purposes as a result of the
dissolution of the Trust and the distribution of Debentures,
and provided, further, that, if and as long as at the time
there is available to the Trust the opportunity to
eliminate, within the 90 Day Period, the Special Event by
taking some ministerial action, such as filing a form or
making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust,
the Debenture Issuer, the Sponsor or the Holders of the
Securities ("Ministerial Action"), the Trust will pursue
such Ministerial Action in lieu of dissolution.
If in the event of a Tax Event, (i) the Regular Trustees have
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Debenture Issuer would
be precluded from deducting the interest on the Debentures for United States
federal income tax purposes even after the Debentures were distributed to the
Holders of Securities in liquidation of such Holders' interests in the Trust as
described in this Section 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion cannot be delivered
to the Trust, the Debenture Issuer shall have the right at any time, upon not
less than 30 nor more than 60 days' notice, to redeem the Debentures in whole
or in part for cash within 90 days following the occurrence of such Tax Event,
and, following such redemption, Securities with an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so redeemed
shall be redeemed by the Trust at the Redemption Price on a Pro Rata basis;
provided, however, that, if at the time there is available to the Debenture
Issuer or the Trust the opportunity to eliminate, within such 90 day period,
the Special Event by taking some Ministerial Action, the Trust or the
Debenture Issuer will pursue such Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have received
an opinion of a nationally recognized independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or after the
date of the Prospectus Supplement, as a result of (a) any amendment to,
clarification of or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, (b) any
judicial decision, official administrative pronouncement, ruling, regulatory
procedure, notice or announcement, including any notice or announcement of
intent to adopt such procedures or regulations (an "Administrative Action") or
(c) any amendment to, clarification of, or change in the official position or
the interpretation of such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification or change is
made known, which amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or after, the first
date of issuance of the Securities, there is more than an insubstantial risk
that (i) the Trust is or will be within 90 days of the date thereof, subject
to United States federal income tax with respect to interest accrued or
received on the Debentures, (ii) the Trust is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties or
other governmental charges, or (iii) interest payable by the Debenture Issuer
to the Trust on the Debentures is not, or within 90 days of the date thereof
will not be, deductible, in whole or in part, by the Debenture Issuer for
United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall
have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by an legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
Investment Company which is required to registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after the
date of the Prospectus Supplement.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) The Depository Trust Company
(the "Depository") or its nominee (or any successor Clearing Agency or its
nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates representing Securities,
except for certificates representing Preferred Securities held by the
Depository or its nominee (or any successor Clearing Agency or its nominee),
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the Coupon Rate of, and accrued and
unpaid interest equal to accrued and unpaid Distributions on such Securities
until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the
date of redemption.
(e) If the Debentures are distributed to holders of
the Securities, pursuant to the terms of the Indenture, the
Debenture Issuer will use its best efforts to have the
Debentures listed on the New York Stock Exchange or on such
other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the
Securities (a "Redemption/Distribution Notice") will be
given by the Trust by mail to each Holder of Securities
to be redeemed or exchanged not fewer than 30 nor more
than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption,
will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption
or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), a Redemption/
Distribution Notice shall be deemed to be given on the
day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such
Holder appearing in the books and records of the Trust.
No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any
Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the
outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities
registered in the name of and held of record by the
Depository or its nominee (or any successor Clearing
Agency or its nominee) or any nominee, the distribution
of the proceeds of such redemption will be made to each
Clearing Agency Participant (or Person on whose behalf
such nominee holds such securities) in accordance with
the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, which
notice may only be issued if the Debentures are
redeemed as set out in this Section 4 (which notice
will be irrevocable), then (A) while the Preferred
Securities are in book-entry only form, with respect to
the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that the
Debenture Issuer has paid the Institutional Trustee a
sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Institutional Trustee will deposit irrevocably with the
Depository or its nominee (or successor Clearing Agency
or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred
Securities and will give the Depository irrevocable
instructions and authority to pay the Redemption Price
to the Holders of the Preferred Securities, and (B)
with respect to Preferred Securities issued in
definitive form and Common Securities, provided that
the Debenture Issuer has paid the Institutional Trustee
a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption
Price to the Holders of such Securities by check mailed
to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date.
If a Redemption/Distribution Notice shall have been
given and funds deposited as required, if applicable,
then immediately prior to the close of business on the
date of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the
Securities so called for redemption and all rights of
Holders of such Securities so called for redemption
will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities
that have been so called for redemption. If any date
fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that
is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such date fixed for redemption.
If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not
paid either by the Institutional Trustee or by the
Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities
will continue to accrue from the original redemption
date to the actual date of payment, in which case the
actual payment date will be considered the date fixed
for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent
by the Regular Trustees on behalf of the Trust to (A)
in respect of the Preferred Securities, the Depository
or its nominee (or any successor Clearing Agency or its
nominee) if the Global Certificates have been issued
or, if Definitive Preferred Security Certificates have
been issued, to the Holder thereof, and (B) in respect
of the Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), provided the acquiror is not the
Holder of the Common Securities or the obligor under
the Indenture, the Sponsor or any of its subsidiaries
may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open
market or by private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a majority in aggregate
liquidation amount of the Preferred Securities, voting
separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the
Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) exercise the
remedies available under the Indenture conducting any
proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is available
under Section ___ of the Indenture, or (iii) exercise any
right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable, provided,
however, that, where a consent under the Indenture would
require the consent or act of the Holders of greater than a
majority of the Holders in principal amount of Debentures
affected thereby, (a "Super Majority"), the Institutional
Trustee may only give such consent or take such action at
the written direction of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The Institutional Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any
remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional
Trustee shall not take any action in accordance with the
directions of the Holders of the Preferred Securities under
this paragraph unless the Institutional Trustee has obtained
an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account
of such action. If a Declaration Event of Default has
occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of
Preferred Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Preferred
Securities of such holder (a "Direct Action") on or after
the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the
holders of the Common Securities Holder will be subrogated
to the rights of such holder of Preferred Securities to the
extent of any payment made by the Issuer to such holder of
Preferred Securities in such Direct Action. Except as
provided in the preceding sentences, the Holders of
Preferred Securities will not be able to exercise directly
any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of Preferred Securities are
entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of Preferred Securities. Each such
notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be
taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled
to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities that are owned by the Sponsor or any Affiliate
of the Sponsor shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 7(b), (c) and 8 as
otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article 5 of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred
Securities has been cured, waived, or otherwise eliminated
and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and
place of conducting any proceeding for any remedy available
to the Institutional Trustee, or exercising any trust or
power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences
that is available under Section ____ of the Indenture, or
(iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and
payable, provided that, where a consent or action under the
Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of Debentures
affected thereby (a "Super Majority"), the Institutional
Trustee may only give such consent or take such action at
the written direction of the Holders of at least the
proportion in liquidation amount of the Common Securities
which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
Pursuant to this Section 6(c), the Institutional Trustee
shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred
Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the
Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action
in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the
Institutional Trustee has obtained an opinion of tax counsel
to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a
grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the
Institutional Trustee's rights under the Declaration,
without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section
12.01 of the Declaration, if any proposed amendment to the
Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section
8.01 of the Declaration, then the Holders of outstanding
Securities voting together as a single class, will be
entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of
the Holders of at least a Majority in liquidation amount of
the Securities, affected thereby, provided, however, if any
amendment or proposal referred to in clause (i) above would
adversely affect only the Preferred Securities or only the
Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class
of Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under
the Indenture with respect to any amendment, modification or
termination on the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of
the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the
Securities voting together as a single class; provided,
however, that where a consent under the Indenture would
require the consent of the holders of greater than a
majority in aggregate principal amount of the Debentures (a
"Super Majority"), the Institutional Trustee may only give
such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the
relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided,
further, that the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of
the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of tax counsel
to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than a
grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default under the Declaration has occurred and is continuing, in which case
any funds available to make such payment shall be paid first to each Holder of
the Preferred Securities pro rata according to the aggregate liquidation amount
of Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where a
Declaration Event of Default occurs and is continuing the rights of Holders of
the Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock
Exchange, Inc., the American Stock Exchange or the Nasdaq Stock Market
National System.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request
to the Sponsor at its principal place of business.
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration and no transfer
of this Preferred Security (other than a transfer of this Preferred Security
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number of Preferred Securities
CUSIP NO. [ ]
Certificate Evidencing Preferred Securities
of
COMCAST CABLE TRUST [__]
____% Guaranteed Trust Preferred Securities
(liquidation amount $25 per Preferred Security)
COMCAST CABLE TRUST [_], a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of preferred securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the _____% Guaranteed Trust Preferred Securities (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject
to the provisions of the Amended and Restated Declaration of Trust of the
Trust dated as of _______, 199[_], as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the
Preferred Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Preferred
Securities Guarantee to the extent provided therein. The Sponsor will provide
a copy of the Declaration, the Preferred Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of , 199[_].
COMCAST CABLE TRUST [_]
By:_________________________
Name:
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed
at a rate per annum of ______% (the "Coupon Rate") of the stated liquidation
amount of $__ per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per 90-day quarter.
Except as otherwise described below, distributions on the
Preferred Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears, on [March 31, June 30,
September 30 and December 31] of each year, commencing on ________, 1998, to
[Holders of record fifteen (15) days prior to such payment dates, which
payment dates shall correspond to the interest payment dates on the
Debentures.] The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding 20 consecutive quarters
(each an "Extension Period"), provided that no Extension Period shall last
beyond the date of the maturity of the Debentures and as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
maturity of the Debentures. Payments of accrued Distributions will be payable
to Holders as they appear on the books and records of the Trust on the first
record date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________
________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:_________________________________
Signature:____________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
COMCAST CABLE TRUST [_]
______% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
COMCAST CABLE TRUST [_], a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
_____________ (the "Holder") is the registered owner of common securities of
the Trust representing undivided beneficial interests in the assets of the
Trust designated the ______% Trust Originated Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject
to the provisions of the Amended and Restated Declaration of Trust of the
Trust dated as of _______, 199[_], as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
___ day of , 199[_].
COMCAST CABLE TRUST [_]
By:______________________________
Name:
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of ______% (the "Coupon Rate") of the stated liquidation
amount of $__ per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee.
Distributions in arrears for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any
period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per 90-day quarter.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on [March 31, June 30, September 30
and December 31] of each year, commencing on ________, 1998, to Holders of
record fifteen (15) days prior to such payment dates, which payment dates
shall correspond to the interest payment dates on the Debentures. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarters or extend beyond the
maturity date of the Debentures. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination
of any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:__________________________________
Signature:_____________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
EXHIBIT B
SPECIMEN OF DEBENTURE
EXHIBIT C
UNDERWRITING AGREEMENT
EXHIBIT 4.14
PREFERRED SECURITIES GUARANTEE AGREEMENT
Comcast Cable Trust [_]
Dated as of _______ __, 199[_]
TABLE OF CONTENTS
Page
ARTICLE 1 ----
Definitions and Interpretation
Section 1.01. Definitions and Interpretation..........................2
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application........................5
Section 2.02. Lists of Holders of Securities..........................5
Section 2.03. Reports by the Preferred Guarantee Trustee..............6
Section 2.04. Periodic Reports to Preferred Guarantee Trustee.........6
Section 2.05. Evidence of Compliance with Conditions Precedent........6
Section 2.06. Events of Default; Waiver...............................6
Section 2.07. Event of Default; Notice................................7
Section 2.08. Conflicting Interests...................................7
ARTICLE 3
Powers, Duties and Rights of Preferred Guarantee Trustee
Section 3.01. Powers and Duties of the Preferred Guarantee Trustee....7
Section 3.02. Certain Rights of Preferred Guarantee Trustee...........9
Section 3.03. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee...................................12
ARTICLE 4
Preferred Guarantee Trustee
Section 4.01. Preferred Guarantee Trustee; Eligibility...............12
Section 4.02. Appointment, Removal and Resignation of Preferred
Guarantee Trustee......................................13
ARTICLE 5
Guarantee
Section 5.01. Guarantee..............................................14
Section 5.02. Waiver of Notice and Demand............................14
Section 5.03. Obligations Not Affected...............................14
Section 5.04. Rights of Holders......................................15
Section 5.05. Guarantee of Payment...................................16
Section 5.06. Subrogation............................................16
Section 5.07. Independent Obligations................................16
ARTICLE 6
Limitation of Transactions; Subordination
Section 6.01. Limitation of Transactions.............................17
Section 6.02. Ranking................................................17
ARTICLE 7
Termination
Section 7.01. Termination............................................17
ARTICLE 8
Indemnification
Section 8.01. Exculpation............................................18
Section 8.02. Indemnification........................................18
ARTICLE 9
Miscellaneous
Section 9.01. Successors and Assigns.................................19
Section 9.02. Amendments.............................................19
Section 9.03. Notices................................................19
Section 9.04. Benefit................................................20
Section 9.05. Governing Law..........................................20
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of _______ __, 199[_], is executed and delivered by
Comcast Cable Communications, Inc., a Delaware corporation (the "Guarantor"),
and [ ], a [New York] banking corporation, as trustee (the
"Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Comcast Cable Trust [_], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of ________, 199[_], among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof [ ] preferred securities, having an
aggregate liquidation amount of $[ ] (plus up to an additional [ ] preferred
securities, having an aggregate liquidation amount of $[ ], to cover
over-allotments)], designated the _____% Guaranteed Trust Preferred Securities
(the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE 1
Definitions and Interpretation
Section 1.1. Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee"
or "this Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless otherwise
defined in this Preferred Securities Guarantee or unless the context
otherwise requires;
and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by
any applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at [
].
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the ___% [Junior Subordinated
Deferrable Interest Debentures] due [ ] held by the Institutional Trustee
(as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Preferred Securities to the
extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price") to the extent the Issuer has funds
available therefor, with respect to any Preferred Securities called for
redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Preferred
Securities as provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
(in either case, the "Liquidation Distribution"). If an event of default
under the Indenture has occurred and is continuing, the rights of holders of
the Common Securities to receive payments under the Common Securities
Guarantee Agreement are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of _______, 1998, among
the Guarantor (the "Debenture Issuer") and [Bank of Montreal Trust Company],
as trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means [
], a [New York] banking corporation, until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Preferred Securities Guarantee and thereafter means each such
Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Guarantee 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 that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Preferred
Securities.
ARTICLE 2
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section 2.2. Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred Securities
("List of Holders") as of such date, (i) within 1 Business Day after January 1
and June 30 of each year, and (ii) at any other time within 30 days of receipt
by the Guarantor of a written request for a List of Holders as of a date no
more than 14 days before such List of Holders is given to the Preferred
Guarantee Trustee provided, that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Preferred Guarantee Trustee
by the Guarantor. The Preferred Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
Section 2.3. Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred
Guarantee Trustee shall provide to the Holders of the Preferred Securities
such reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided
for in this Preferred Securities Guarantee that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice,
provided, that, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the
Preferred Guarantee Trustee charged with the administration of the Declaration
shall have obtained actual knowledge.
Section 2.8. Conflicting Interests.
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
Powers, Duties and Rights of Preferred Guarantee Trustee
Section 3.1. Powers and Duties of the Preferred Guarantee
Trustee.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.04(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor Preferred
Guarantee Trustee of its appointment to act as Successor Preferred Guarantee
Trustee. The right, title and interest of the Preferred Guarantee Trustee
shall automatically vest in any Successor Preferred Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders of the Preferred Securities.
(c) Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred
Securities Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the
express provisions of this Preferred Securities
Guarantee, and the Preferred Guarantee Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and
conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee Trustee,
unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount of
the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Preferred
Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against
such risk or liability is not reasonably assured to it.
Section 3.2. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining
from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall
deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder,
the Preferred Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any
instrument (or any rerecording, refiling or registration
thereof).
(v) The Preferred Guarantee Trustee may consult with
counsel, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Preferred Guarantee
Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent
jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Preferred Securities Guarantee at the request or
direction of any Holder, unless such Holder shall have
provided to the Preferred Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the
Preferred Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Preferred
Guarantee Trustee; provided that, nothing contained in this
Section 3.02(a)(vi) shall be taken to relieve the Preferred
Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee 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, other evidence of
indebtedness or other paper or document, but the Preferred
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it
may see fit.
(viii) The Preferred Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Preferred Guarantee 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.
(ix) Any action taken by the Preferred Guarantee
Trustee or its agents hereunder shall bind the Holders of
the Preferred Securities, and the signature of the Preferred
Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party
shall be required to inquire as to the authority of the
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's
or its agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall
deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation
amount of the Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in accordance
with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
Section 3.3. Not Responsible for Recitals or Issuance of
Preferred Securities Guarantee.
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Guarantee
Trustee does not assume any responsibility for their correctness. The
Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Preferred Securities Guarantee.
ARTICLE 4
Preferred Guarantee Trustee
Section 4.1. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.01(a)(ii), 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.
(b) If at any time the Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.01(a), the Preferred
Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
Section 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.02(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and
the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have
been appointed and accepted appointment as provided in this Section 4.02
within 60 days after delivery to the Guarantor of an instrument of removal or
resignation, the resigning Preferred Guarantee Trustee may petition any court
of competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the
acts or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE 5
Guarantee
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the Debentures
or any extension of the maturity date of the Debentures permitted by the
Indenture);
(c) failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer; (e) invalidity of, or defect or
deficiency in, the Preferred Securities;
(f) settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4. Rights of Holders.
(a) Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee.
(b) the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer,
the Preferred Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
Section 5.5. Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE 6
Limitation of Transactions; Subordination
Section 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if
there shall have occurred an Event of Default or an event of default under the
Declaration, then (a) the Guarantor shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make
a liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Common Stock in connection with the
satisfaction by the Guarantor of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of the Guarantor's capital stock
or the exchange or conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock or, (iii)
the purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital stock of the
Guarantor or the security being converted or exchanged) or make any guarantee
payments with respect to the foregoing or (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Guarantor
which rank pari passu with or junior to the Debentures.
Section 6.2. Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any Preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.
ARTICLE 7
Termination
Section 7.1. Termination.
This Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of
Preferred Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE 8
Indemnification
Section 8.1. Exculpation.
(a) Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Preferred Securities
Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
Section 8.2. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person 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 (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this Section
8.02 shall survive the termination of this Preferred Securities Guarantee.
ARTICLE 9
Miscellaneous
Section 9.1. Successors and Assigns.
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
Section 9.2. Amendments.
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be required),
this Preferred Securities Guarantee may only be amended with the prior approval
of the Holders of at least a Majority in liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all the outstanding Preferred Securities. The provisions of
Section 12.02 of the Declaration with respect to meetings of Holders of the
Securities apply to the giving of such approval.
Section 9.3. Notices.
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
[ ]:
Corporate Trust Trustee Administration
(b) given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities):
Comcast Cable Communications, Inc., 1500 Market Street,
Philadelphia, Pennsylvania 19102 Attention:
(c) given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
Section 9.4. Benefit.
This Preferred Securities Guarantee is solely for the benefit
of the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
Section 9.5. Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
COMCAST COMMUNICATIONS,
INC., as Guarantor
By:________________________________
Name:
Title:
[ ],
as Preferred Guarantee Trustee
By:________________________________
Name:
Title:
Exhibit 4.16
- -------------------------------------------------------------------------------
COMCAST CABLE COMMUNICATIONS, INC.
[_________________],
as Unit Agent, as Collateral Agent, and
as Trustee and Paying Agent under the
Indenture referred to herein
AND
THE HOLDERS FROM TIME TO TIME
OF THE UNITS DESCRIBED HEREIN
---------------------------
UNIT AGREEMENT
---------------------------
Dated as of [____], 1998
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions...................................................2
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally..............................................10
SECTION 2.02. Form of Certificate of Authentication and
Countersignature.........................................11
SECTION 2.03. Amount Unlimited; Issuable in Series.........................11
SECTION 2.04. Denominations................................................12
SECTION 2.05. Rights and Obligations Evidenced by the Units................12
SECTION 2.06. Execution, Authentication, Delivery and Dating...............13
SECTION 2.07. Temporary Unit Certificates..................................13
SECTION 2.08. Registration of Transfer and Exchange; Global
Units....................................................14
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit
Certificates.............................................16
SECTION 2.10. Persons Deemed Owners........................................18
SECTION 2.11. Cancellation.................................................18
SECTION 2.12. Exchange of Global Units and Definitive Units................19
ARTICLE 3
THE PURCHASE CONTRACTS
SECTION 3.01. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts.............................20
SECTION 3.02. Number Unlimited Issuable in Series..........................21
SECTION 3.03. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts.......................24
SECTION 3.04. Further Provisions Relating to Issuance of
Purchase Contracts.......................................26
SECTION 3.05. Purchase of Purchase Contract Property;
Optional Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees
Bound....................................................27
SECTION 3.06. Payment of Settlement Amount.................................28
SECTION 3.07. Delivery of Settlement Amount................................30
SECTION 3.08. Charges and Taxes............................................31
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations..................................31
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders.....................31
SECTION 4.03. Restoration of Rights and Remedies...........................32
SECTION 4.04. Rights and Remedies Cumulative...............................33
SECTION 4.05. Delay or Omission Not Waiver.................................33
SECTION 4.06. Waiver of Past Defaults......................................33
SECTION 4.07. Undertaking for Costs........................................34
SECTION 4.08. Waiver of Stay or Extension Laws.............................34
SECTION 4.09. Agent May File Proofs of Claims..............................34
SECTION 4.10. Suits for Enforcement........................................35
SECTION 4.11. Control by Holders...........................................35
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection.................36
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral...............................................37
SECTION 5.03. Certain Duties and Responsibilities of the
Collateral Agent .......................................38
SECTION 5.04. Knowledge of the Collateral Agent............................39
SECTION 5.05. Certain Rights of Collateral Agent...........................39
SECTION 5.06. Compensation and Reimbursements..............................40
SECTION 5.07. Corporate Collateral Agent Required; Eligibility.............41
SECTION 5.08. Resignation and Removal; Appointment of
Successor................................................41
SECTION 5.09. Acceptance of Appointment by Successor.......................42
SECTION 5.10. Merger, Conversion, Consolidation or Succession
to Business..............................................43
SECTION 5.11. Money Held in Trust..........................................44
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities..........................44
SECTION 6.02. Notice of Default............................................45
SECTION 6.03. Certain Rights of Agent......................................45
SECTION 6.04. Not Responsible for Recitals or Issuance of Units............47
SECTION 6.05. May Hold Units...............................................47
SECTION 6.06. Money Held in Trust..........................................47
SECTION 6.07. Compensation and Reimbursement...............................47
SECTION 6.08. Corporate Agent Required; Eligibility........................48
SECTION 6.09. Resignation and Removal; Appointment of
Successor................................................48
SECTION 6.10. Acceptance of Appointment by Successor.......................50
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business..............................................50
SECTION 6.12. Appointment of Authenticating Agent..........................51
SECTION 6.13. Corporation to Furnish Agent Names and
Addresses of Holders.....................................53
SECTION 6.14. Preservation of Information; Communications to
Holders..................................................53
SECTION 6.15. No Obligation of Holder......................................54
SECTION 6.16. Tax Compliance...............................................54
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of
Holders..................................................56
SECTION 7.02. Supplemental Agreements with Consent of Holders..............57
SECTION 7.03. Execution of Supplemental Agreements.........................58
SECTION 7.04. Effect of Supplemental Agreements............................58
SECTION 7.05. Reference to Supplemental Agreements.........................58
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions..........59
SECTION 8.02. Rights and Duties of Successor Corporation...................59
SECTION 8.03. Opinion of Counsel to Agent..................................60
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts.........................60
SECTION 9.02. Maintenance of Office or Agency..............................60
SECTION 9.03. Money for Payments to Be Held in Trust.......................61
SECTION 9.04. Statements of Officers of the Corporation as to
Default..................................................62
SECTION 9.05. Negative Pledge..............................................62
SECTION 9.06. Luxembourg Publications......................................63
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities............63
SECTION 10.02. Notice of Redemption; Partial Redemptions...................64
SECTION 10.03. Payment of Purchase Contracts Called for
Redemption...............................................65
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption.................66
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability................................................66
SECTION 11.02. Compliance Certificates and Opinions........................66
SECTION 11.03. Form of Documents Delivered to Agent or
Collateral Agent.........................................67
SECTION 11.04. Acts of Holders.............................................68
SECTION 11.05. Notices, Etc................................................69
SECTION 11.06. Notices to Holders; Waiver..................................69
SECTION 11.07. Effect of Headings and Table of Contents....................70
SECTION 11.08. Successors and Assigns......................................70
SECTION 11.09. Separability Clause.........................................70
SECTION 11.10. Benefits of Agreement.......................................70
SECTION 11.11. Governing Law...............................................70
SECTION 11.12. Legal Holidays..............................................70
SECTION 11.13. Counterparts................................................71
SECTION 11.14. Appointment of Certain Agents...............................71
SECTION 11.15. Inspection of Agreement.....................................71
UNIT AGREEMENT, dated as of [____], 1998, by and among COMCAST CABLE
COMMUNICATIONS, INC., a Delaware corporation (the "Corporation"), [_____], a
[_____] banking corporation ("[Bank]"), acting solely as unit agent and
collateral agent under this Agreement (in its capacity as unit agent, the
"Agent", and, in its capacity as collateral agent, the "Collateral Agent"),
except to the extent that this Agreement specifically states that the Agent is
acting in another capacity, [Bank], as trustee and paying agent under the
Indenture described below (in its capacity as trustee under the Indenture, the
"Trustee" and, in its capacity as paying agent under the Indenture, the "Paying
Agent"), and the holders from time to time of the Units described herein.
WHEREAS, the Corporation has entered into a Senior Indenture dated as
of May 1, 1997, between the Corporation and the Bank of Montreal Trust Company,
as Trustee (the "Senior Indenture");
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, pursuant to the Indenture of senior debt securities ("Debt
Securities");
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, of Purchase Contracts ("Purchase Contracts") requiring the holder
thereof to purchase or sell (i) securities of an entity unaffiliated with the
Corporation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or composite
currencies or (iii) commodities, in each case on terms to be determined at the
time of sale;
WHEREAS, the Corporation has duly authorized the issuance, from time
to time, pursuant to the Indenture, of Purchase Contracts that require holders
to satisfy their obligations thereunder upon issuance of such Purchase
Contracts ("Prepaid Purchase Contracts");
WHEREAS, the Corporation desires to provide for the issuance of units
("Units") consisting of one or more Purchase Contracts, Prepaid Purchase
Contracts or Debt Securities, or any combination thereof;
WHEREAS, the parties hereto wish to secure the performance by the
holders of Units consisting of Debt Securities and Purchase Contracts of their
obligations under such Purchase Contracts and the observance and performance of
the covenants and agreements contained herein and in such Purchase Contracts;
NOW, THEREFORE, in consideration of the premises and the purchases of
the Units by the holders thereof, the Corporation, the Agent, the Collateral
Agent and the Trustee and Paying Agent mutually covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(i) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(ii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States in effect at the time of
any computation; and
(iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Accelerated Settlement Date" with respect to a Purchase Contract of
any series, means any date to which the Corporation accelerates the obligations
of the Holder of the Units of which such Purchase Contract constitutes a part,
subject to any limitations as may be specified pursuant to Section 3.02.
"Acceleration Notice", has the meaning specified in Section 3.05(b).
"Act", with respect to any Holder, has the meaning specified in
Section 11.04.
"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", with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph
of this Agreement until a successor Agent shall have become such pursuant to
the applicable provisions of this Agreement, and thereafter "Agent" shall mean
such successor Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Authenticating Agent" means any Person authorized by the Agent to act
on behalf of the Agent to countersign and execute Purchase Contracts.
"Bankruptcy Event" means any of the following events: (i) a court
having jurisdiction in the premises shall enter a decree or order for relief
with respect to the Corporation in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Corporation or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (ii) the Corporation shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Corporation or for any substantial part of its property, or
make any general assignment for the benefit of creditors.
"Board of Directors", means the board of directors of the Corporation
or any other committee duly authorized to act on its behalf with respect to
this Agreement.
"Board Resolution", means one or more resolutions, certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the Agent or the
Collateral Agent, as the case may be.
"Business Day" means any day that is not a Saturday or Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law, regulation or executive
order to be closed.
"Cash Settlement" has the meaning set forth in Section 3.06(a)(i).
"Closed Purchase Contract" means any Purchase Contract or Prepaid
Purchase Contract with respect to which a purchase or sale of, or other
settlement with respect to, the Purchase Contract Property has occurred
pursuant to Article Four or that has been redeemed or is otherwise not
Outstanding.
"Collateral" has the meaning specified in Section 5.01(a).
"Collateral Agent" means the Person named as the "Collateral Agent" in
the first paragraph of this Agreement until a successor Collateral Agent shall
have become such pursuant to the applicable provisions of this Agreement, and
thereafter "Collateral Agent" shall mean such successor Person.
"Corporate Trust Office" means the office of the Agent or the
Collateral Agent, as appropriate, at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at [_______________].
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this Agreement until a successor Person shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter the
"Corporation" shall mean such successor Person.
"Debt Securities" has the meaning stated in the second recital in this
Agreement and more particularly means any Debt Securities originally issued as
part of a Unit of any series.
"Debt Security Register" with respect to any Debt Securities
constituting a part of the Units of any series means the security register of
the Corporation maintained by the Trustee pursuant to the Indenture.
"Debt Security Settlement" has the meaning set forth in Section
3.06(a)(ii).
"Default" means an Event of Default under the Indenture or a Purchase
Contract Default.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive Securities.
"Depositary" means DTC, or any successor, or any other relevant
depositary named in an Issuer Order, in each case, as the Holder of any Global
Units.
"DTC" means The Depository Trust Company or its nominee.
"Event of Default", with respect to the Debt Securities, has the
meaning set forth in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Debt Security" means a global Debt Security in registered form
originally issued as part of a Global Unit of any series.
"Global Prepaid Purchase Contract" means a global Prepaid Purchase
Contract in registered form originally issued as part of a Global Unit of any
series.
"Global Purchase Contract" means a global Purchase Contract in
registered form originally issued as part of a Global Unit of any series.
"Global Security" means any of a Global Debt Security, Global Purchase
Contract or Global Prepaid Purchase Contract.
"Global Unit" means any Unit that comprises one or more Global
Securities and is represented by a global Unit Certificate in registered form.
"Holder" means the Person in whose name such Registered Security or
the Registered Securities constituting a part of such Registered Unit are
registered on the relevant Security Register, so long as the Registered
Securities constituting part of such Units are not separable, "Holder" shall
mean the Person in whose name a Registered Security constituting a part of such
Unit is registered on the Security Register specified pursuant to Section 2.03.
"Indenture" has the meaning specified in the first recital in this
Agreement.
"Initial Acceleration Date" means, with respect to Purchase Contracts
or Prepaid Purchase Contracts of any series, the initial date, if any,
specified pursuant to Section 3.02 on which such Purchase Contracts or Prepaid
Purchase Contracts may be accelerated pursuant to Section 3.05 hereof.
"Interest Payment Date", with respect to any Debt Security, has the
meaning set forth in the Indenture or in any document executed pursuant to the
terms of the Indenture relating to such Debt Security.
"Issuer Order" or "Issuer Request", means a written order or request
signed in the name of the Corporation by the Chairman of the Board, the
President, the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer or any
other person authorized by the Board of Directors and delivered to the Agent or
the Collateral Agent, as the case may be.
"Letter of Representations" means, as of any date, the Letter of
Representations or Letters of Representations to DTC in effect as of such date
from the Agent relating to the Units covered by this Agreement.
"Minimum Acceleration Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.02 that may be
subject to acceleration pursuant to Section 3.05.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.02 that must remain
Outstanding immediately following any acceleration pursuant to Section 3.05.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer of the Corporation or any other person authorized by the Board of
Directors and delivered to the Agent or the Collateral Agent, as the case may
be.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation and who shall
otherwise be satisfactory to the Agent or the Collateral Agent, as the case may
be.
"Optional Definitive Unit Request" has the meaning set forth in
Section 2.12.
"Outstanding", with respect to any Unit, Debt Security, Purchase
Contract or Prepaid Purchase Contract means, as of the date of determination,
all Units, Debt Securities, Purchase Contracts or Prepaid Purchase Contracts,
as the case may be, evidenced by Units theretofore authenticated,
countersigned, executed and delivered under this Agreement, except:
(A) Units, Debt Securities, Purchase Contracts or Prepaid
Purchase Contracts theretofore deemed cancelled, cancelled by the
Agent or Trustee, as the case may be, or delivered to the Agent or
Trustee, as the case may be, for cancellation, in each case pursuant
to the provisions of this Agreement or the Indenture;
(B) Closed Purchase Contracts; and
(C) Units, Debt Securities, Purchase Contracts or Prepaid
Purchase Contracts evidenced by Unit Certificates in exchange for or
in lieu of which other Unit Certificates have been authenticated,
countersigned, executed and delivered pursuant to this Agreement,
other than any such Units, Debt Securities, Purchase Contracts or
Prepaid Purchase Contracts, as the case may be, evidenced by a Unit
Certificate in respect of which there shall have been presented to the
Agent proof satisfactory to it that such Unit Certificate is held by a
bona fide purchaser in whose hands the Units, Debt Securities,
Purchase Contracts or Prepaid Purchase Contracts, as the case may be,
evidenced by such Unit Certificate are valid obligations of the
Corporation;
provided, however, that in determining whether the Holders of the requisite
number of Outstanding Units, Debt Securities, Purchase Contracts and Prepaid
Purchase Contracts, as the case may be, have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Units, Debt
Securities, Purchase Contracts and Prepaid Purchase Contracts owned by the
Corporation or any Affiliate of the Corporation shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Agent shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Units, Debt Securities, Purchase Contracts and
Prepaid Purchase Contracts which the Agent knows to be so owned shall be so
disregarded. Units, Debt Securities, Purchase Contracts and Prepaid Purchase
Contracts that are so owned but that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Agent the pledgee's right so to act with respect to such Units, Debt
Securities, Purchase Contracts and Prepaid Purchase Contracts and that the
pledgee is not the Corporation or any Affiliate of the Corporation.
"Paying Agent" means any Person authorized by the Corporation to pay
the Settlement Amount, redemption price or any other sums payable by the
Corporation with respect to any Purchase Contracts; provided that such Person
shall be a bank or trust company organized and in good standing under the laws
of the United States or any state in the United States, having (together with
its parent) capital, surplus and undivided profits aggregating at least
$50,000,000 or any foreign branch or office of such a bank or trust company,
and, subject to the foregoing, may be an Affiliate of the Corporation.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledged Items" means, as of any date, any Debt Securities
constituting a part of the Units of any series or any and all other securities,
instruments or other property as may be specified pursuant to Section 3.02.
"Prepaid Purchase Contracts" has the meaning stated in the sixth
recital in this Agreement and more particularly means any Prepaid Purchase
Contracts originally issued as part of a Unit of any series.
"Purchase Contract Default" with respect to Purchase Contracts of any
series means the occurrence of any of the following events: (i) failure of the
Corporation to deliver the cash value of the Purchase Contract Property for
such Purchase Contracts against tender of payment therefor on any Settlement
Date, in the case of Purchase Contracts that obligate the Corporation to sell
the Purchase Contract Property, (ii) failure of the Corporation to pay the
Settlement Amount for such Purchase Contracts when the same becomes due and
payable, in the case of Purchase Contracts that obligate the Corporation to
purchase the Purchase Contract Property, (iii) failure on the part of the
Corporation duly to observe or perform any other of the covenants or agreements
on its part in such Purchase Contracts or in this Agreement with respect to
such Purchase Contracts and continuance of such failure for a period of 60 days
after the date on which written notice of such failure, requiring the
Corporation to remedy the same, shall have been given to the Corporation and
the Agent by Holders of at least 25% of the affected Purchase Contracts at the
time Outstanding, (iv) a Bankruptcy Event or (v) any other Purchase Contract
Default provided in any supplemental agreement under which such series of
Purchase Contracts is issued or in the form of such Purchase Contracts.
"Purchase Contract Property" with respect to a Purchase Contract of
any series has the meaning specified pursuant to Section 3.02.
"Purchase Contract Register" and "Purchase Contract Registrar" have
the respective meanings specified in Section 2.08.
"Purchase Contracts" has the meaning stated in the fifth recital in
this Agreement and more particularly means any Purchase Contracts constituting
a part of the Units of any series countersigned, executed and delivered in
accordance with this Agreement.
"Purchase Price" of any Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, the Purchase Contract Property
has the meaning specified pursuant to Section 3.02.
"Registered Debt Security" means any Debt Security or Prepaid Purchase
Contract registered on the Debt Security Register.
"Registered Purchase Contract" means any Purchase Contract registered
on the Purchase Contract Register.
"Registered Security" means any of a Registered Debt Security or
Registered Purchase Contract.
"Registered Unit" means any Unit consisting of Registered Securities.
"Regular Record Date" has the meaning specified pursuant to Section
2.03.
"Responsible Officer", with respect to the Agent or Collateral Agent,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Agent or
Collateral Agent customarily performing functions similar to those performed by
any of the above-designated officers and also means, with respect to a
particular corporate trust or agency matter, any other officer to whom such
matter is referred because of his knowledge and familiarity with the particular
subject.
"Security" means any of a Debt Security, Purchase Contract or Prepaid
Purchase Contract.
"Security Register" means either of the Debt Security Register or
Purchase Contract Register.
"Settlement Amount" of any Purchase Contract that obligates the
Corporation to purchase, and the Holder to sell, the Purchase Contract Property
has the meaning specified pursuant to Section 3.02.
"Settlement Date" means the Stated Settlement Date and any Accelerated
Settlement Date.
"SRO" has the meaning specified in Section 2.01.
"Stated Settlement Date" of any Purchase Contract of any series has
the meaning specified pursuant to Section 3.02.
"Trustee", with respect to any Debt Securities or Prepaid Purchase
Contracts, means the Person acting as Trustee under the Indenture until a
successor Trustee shall have become such pursuant to the applicable provisions
of such Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"Unit" has the meaning stated in the seventh recital to this Agreement
and more particularly the collective rights and obligations of the Corporation
and a Holder with respect to the Securities comprising such Unit, as specified
pursuant to Section 2.03.
"Unit Certificate" means a certificate evidencing the rights and
obligations of the Corporation and a Holder with respect to the number of Units
specified on such certificate.
"Unregistered Security" means any Security other than a Registered
Security.
"Unregistered Unit" means any Unit other than a Registered Unit.
"Unsettled Purchase Contract" means any Purchase Contract that has not
been redeemed or with respect to which settlement has not occurred pursuant to
Article Four.
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally. The Units of each series shall be
substantially in the form of Exhibit A or in such form (not inconsistent with
this Agreement) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to rather than set forth in a Board Resolution, an Officer's
Certificate detailing such establishment). The Unit Certificates may have
imprinted or otherwise reproduced thereon such letters, numbers or other marks
of identification or designation and such legends or endorsements as the
officers of the Corporation executing the Securities constituting a part
thereof may approve (execution thereof to be conclusive evidence of such
approval) and that are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto, or with any rule or regulation of any self-regulatory
organization (an "SRO") on which the Units of such series may be listed or
quoted or of any securities depository or to conform to general usage.
The Unit Certificates 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 Unit Certificates, as evidenced by
their execution of the Securities constituting a part of the Units evidenced by
such Unit Certificates.
SECTION 2.02. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
any Debt Securities or Prepaid Purchase Contracts and the form of the Agent's
execution on behalf of the Holder and countersignature of any Purchase
Contracts, each constituting a part of the Units of any series, shall be
substantially in such form as set forth in the Indenture or this Agreement, as
applicable.
SECTION 2.03. Amount Unlimited; Issuable in Series. (a) The
aggregate number of Units that may be authenticated, countersigned and
delivered under this Agreement is unlimited.
The Units may be issued in one or more series. There shall be
established, upon the order of the Corporation (contained in an Issuer Order)
or pursuant to such procedures acceptable to the Agent as may be specified from
time to time by an Issuer Order, prior to the initial issuance of Units of any
series:
(i) the designation of the Units of the series, which shall
distinguish the Units of the series from the Units of all other
series;
(ii) any limit upon the aggregate number of Units of the series
that may be authenticated and delivered under this Agreement (except
for Units authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Units of the series
pursuant to Section 2.07, 2.08, 2.09 or 2.12);
(iii) the designation of the Securities constituting a part of
the Units of the series;
(iv) whether and on what terms any Securities constituting a part
of the Units of the series may be separated from the Units of the
series and the other Securities constituting a part of such Units;
(v) in the case of Units of a series consisting in any part of
Purchase Contracts, the information specified pursuant to Section
3.02;
(vi) in the case of Units issued as Registered Units consisting
of Registered Securities that may not be separated from the other
Registered Securities constituting a part of such Units, the
designation of the Security Register to be used to determine the
Holder of such Units;
(vii) if the Units of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Unit of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(viii) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Units of such series;
(ix) any other events of default or covenants with respect to the
Units of such series; and
(x) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Agreement).
All Units of any one series shall be substantially identical, except
as may otherwise be provided by or pursuant to the Issuer Order or procedures
referred to above. All Units of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this
Agreement, if so provided by or pursuant to such Board Resolution or such
Issuer Order.
SECTION 2.04. Denominations. Units of any series shall be issuable
only in denominations of a single Unit and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units of
any series shall evidence (a) the ownership by the Holder thereof of the
principal amount of Debt Securities, if any, specified on the face of a Unit
Certificate representing Definitive Units or in Schedule A attached to any Unit
Certificate representing Global Units and (b) the number of Prepaid Purchase
Contracts, if any, specified on the face of a Unit Certificate representing
Definitive Units or in Schedule A attached to any Unit Certificate representing
Global Units and the rights and obligations of the Corporation and the Holder
under the number of Purchase Contracts, if any, specified on the face of a Unit
Certificate representing Definitive Units or in Schedule A attached to any Unit
Certificate representing Global Units.
SECTION 2.06. Execution, Authentication, Delivery and Dating. Upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Corporation may deliver, subject to any limitation on the
aggregate principal amount of Debt Securities, if any, or the number of
Purchase Contracts or Prepaid Purchase Contracts, if any, represented thereby,
an unlimited number of Unit Certificates (including the Securities executed by
the Corporation constituting the Units evidenced by such Unit Certificates) to
the Trustee and/or the Agent for authentication, countersignature or execution,
as the case may be, of the Securities comprised by such Units, together with
its Issuer Orders for authentication, countersignature or execution of such
Securities, and the Trustee in accordance with the Indenture and the Issuer
Order of the Corporation shall authenticate the Debt Securities and Prepaid
Purchase Contracts, if any, constituting a part of the Units evidenced by such
Unit Certificates and the Agent in accordance with this Agreement and the
Issuer Order of the Corporation shall countersign and execute on behalf of the
Holders thereof the Purchase Contracts, if any, constituting a part of the
Units evidenced by such Unit Certificates, and each shall deliver such Unit
Certificates upon the order of the Corporation.
Any Debt Securities or Prepaid Purchase Contracts constituting a part
of the Units of any series shall be executed on behalf of the Corporation in
accordance with the terms of the Indenture. Any Purchase Contracts constituting
a part of the Units shall be executed on behalf of the Corporation in
accordance with Section 3.01.
SECTION 2.07. Temporary Unit Certificates. Pending the preparation of
Unit Certificates for any series, the Corporation may execute and deliver to
the Trustee and/or the Agent, as appropriate, and the Trustee and/or the Agent,
as appropriate, shall authenticate, countersign, execute on behalf of the
Holder and deliver, as appropriate, in lieu of such Unit Certificates,
temporary Unit Certificates for such series. Temporary Unit Certificates shall
be in substantially the form of the Unit Certificates of such series, but with
such omissions, insertions and variations as may be appropriate for temporary
Unit Certificates, all as may be determined by the Corporation with the
concurrence of the Trustee and/or Agent, as appropriate, as evidenced by the
execution and authentication and/or countersignature of the Securities
constituting a part of the Units evidenced thereby, as applicable.
If temporary Unit Certificates for any series are issued, the
Corporation will cause definitive Unit Certificates for such series to be
prepared without unreasonable delay. After the preparation of such definitive
Unit Certificates, the temporary Unit Certificates shall be exchangeable
therefor upon surrender of temporary Registered Units of such series at the
Corporate Trust Office, at the expense of the Corporation and without charge to
any Holder and, in the case of Unregistered Units, at any agency maintained for
such purpose as specified pursuant to Section 2.03. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the Trustee and/or the Agent, and the Trustee
and/or the Agent shall authenticate, countersign, execute on behalf of the
Holder and deliver, as appropriate, in exchange therefor definitive Unit
Certificates of the same series of like tenor, of authorized denominations and
evidencing a like number of Units as the temporary Unit Certificate or
Certificates so surrendered. Until so exchanged, the temporary Unit
Certificates of any series shall in all respects evidence the same benefits and
the same obligations under any Debt Securities, Prepaid Purchase Contracts and
Purchase Contracts constituting parts of such Units, the Indenture and this
Agreement as definitive Unit Certificates of such series, unless otherwise
specified pursuant to Section 2.03.
SECTION 2.08. Registration of Transfer and Exchange; Global Units. The
Agent shall keep at its Corporate Trust Office for each series of Registered
Units a register (the register maintained in such office being herein referred
to as the "Purchase Contract Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the registration
of Registered Purchase Contracts, if any, constituting a part of such series
and of transfers of such Purchase Contracts (the Agent, in such capacity, the
"Purchase Contract Registrar").
At the option of the Holder thereof, Registered Units of any series
(other than a global Registered Unit, except as set forth below) may be
transferred or exchanged for a Registered Unit or Registered Units of such
series having authorized denominations evidencing the number of Units
transferred or exchanged, upon surrender of such Registered Units to be so
transferred or exchanged at the Corporate Trust Office of the Agent upon
payment, if the Corporation shall so require, of the charges hereinafter
provided. Whenever any Units are so surrendered for transfer or exchange, the
Corporation shall execute, and the Trustee and/or the Agent, as appropriate,
shall authenticate, countersign or execute, as the case may be, and deliver the
Units which the Holder making the transfer or exchange is entitled to receive.
All Units (including the Securities constituting part of such Units)
surrendered upon any exchange or transfer provided for in this Agreement shall
be promptly cancelled and disposed of by the Agent and the Agent will deliver a
certificate of disposition thereof to the Corporation and to the Trustee.
Subject to Section 2.12, if the Corporation shall establish pursuant
to Section 2.03 that the Units of a series are to be evidenced by one or more
Global Units, then the Corporation shall execute and the Agent and Trustee
shall, in accordance with this Section and Section 2.06, countersign,
authenticate and execute, as appropriate, and deliver one or more global Unit
Certificates that (i) shall evidence all or a portion of the Units of such
series issued in such form and not yet cancelled, (ii) shall be registered in
the name of the Depositary for such Units or the nominee of such Depositary,
(iii) shall be delivered by the Agent to the Depositary for such Units or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Units in definitive registered form, this Unit Certificate
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary." Whenever
Global Units of any series are exchanged for Definitive Units of such series or
whenever Definitive Units of any series are exchanged for Global Units of such
series, the Agent shall cause, as applicable: (i) Schedule A of the Global Debt
Security, if any, to be endorsed to reflect any increase or decrease, as the
case may be, in the principal amount of Debt Securities, if any, that are
comprised by Global Units as a result of such exchange, (ii) Schedule A of the
Global Purchase Contract, if any, to be endorsed to reflect any increase or
decrease, as the case may be, in the number of Purchase Contracts, if any, that
are comprised by Global Units as a result of such exchange and (iii) Schedule A
of the Global Prepaid Purchase Contract, if any, to be endorsed to reflect any
increase or decrease, as the case may be, in the number of Prepaid Purchase
Contracts, if any, that are comprised by Global Units as a result of such
exchange, whereupon such number of Global Units shall be decreased or increased
for all purposes by the number so exchanged, as noted.
All Unit Certificates authenticated, countersigned and executed upon
any registration of transfer or exchange of a Unit Certificate shall evidence
the ownership of the principal amount of Debt Securities, if any, specified on
the face thereof and the number of Prepaid Purchase Contracts, if any,
specified on the face thereof and the rights and obligations of the Holder and
the Corporation under the number of Purchase Contracts, if any, specified on
the face thereof and shall be entitled to the same benefits, and be subject to
the same obligations, under the Indenture and this Agreement as the Units
evidenced by the Unit Certificate surrendered upon such registration of
transfer or exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Corporation or the Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of a
Unit, but the Corporation and the Agent may require payment from the Holder 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 Units,
other than any exchanges pursuant to Section 2.09 not involving any transfer.
Notwithstanding the foregoing, and subject to Section [__] of the
Indenture, the Corporation shall not be obligated to execute and deliver to the
Trustee or the Agent, and none of the Trustee, under the terms of the
Indenture, or the Agent hereunder shall be obligated to authenticate,
countersign or execute on behalf of the Holder any Unit Certificate presented
or surrendered for registration of transfer or for exchange of any Debt
Securities, Prepaid Purchase Contracts or Purchase Contracts evidenced thereby
or any Unit Certificate evidencing a Definitive Unit to be issued in exchange
for interests in Global Units or to reflect any increase or decrease in a
Global Unit, Global Debt Security, Global Purchase Contract or Global Prepaid
Purchase Contract (i) during the period beginning any time on or after the
opening of business 15 days before the day of mailing of a notice of redemption
or of any other exercise of any right held by the Corporation with respect to
the Unit (or any Security constituting a part of the Units of such series) and
ending at the close of business on the day of the giving of such notice, (ii)
that evidences or would evidence any such Unit or Security selected or called
for redemption or with respect to which such right has been exercised or (iii)
at any given date, if such date is on or after any date that is after the
Settlement Date or the date of redemption, as applicable, with respect to the
Purchase Contracts, if any, evidenced or to be evidenced by such Unit
Certificate, except with respect to any Registered Debt Securities or portions
thereof that remain or will remain Outstanding following such Settlement Date
or date of redemption (or such last exercise date) or (iv) at any other date
specified pursuant to Section 2.03.
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Agent, the Corporation
shall execute and deliver to the Trustee and/or the Agent, as appropriate, and
the Trustee and/or the Agent shall authenticate, countersign, execute on behalf
of the Holder and deliver, as appropriate, in exchange therefor new Securities
comprised by Units of the same series, of like tenor, and evidenced by a new
Unit Certificate evidencing the same number of Units and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee and/or
the Agent, as appropriate, (i) evidence to their satisfaction of the
destruction, loss or theft of any Unit Certificate and (ii) such security or
indemnity as may be required by them to hold each of them and any agent of any
of them harmless, then, in the absence of notice to the Corporation and the
Trustee and/or the Agent, as appropriate, that such Unit Certificate has been
acquired by a bona fide purchaser, the Corporation shall execute and deliver to
the Trustee and/or the Agent, as appropriate, and the Trustee (in accordance
with the provisions of the Indenture), and/or the Agent (in accordance with the
provisions hereof) shall authenticate, countersign, execute on behalf of the
Holder and deliver to the Holder, as appropriate, in lieu of any such
destroyed, lost or stolen Unit Certificate, new Securities comprised by Units
of the same series, of like tenor, and evidenced by a new Unit Certificate
evidencing the same number of Units and bearing a number not contemporaneously
outstanding.
Unless otherwise specified pursuant to Section 2.03, notwithstanding
the foregoing, the Corporation shall not be obligated to execute and deliver to
the Trustee or the Agent, and none of the Trustee (under the Indenture), or the
Agent shall be obligated to authenticate, countersign or execute on behalf of
the Holder, or deliver to the Holder, a new Unit Certificate (or any Security
constituting a part of such Unit) (i) during the period beginning any time on
or after the opening of business 15 days before the day of mailing of a notice
of redemption or of any other exercise of any right held by the Corporation
with respect to the Unit (or any Security constituting a part of such Unit) and
ending at the close of business on the day of the giving of such notice, (ii)
that evidences any Unit or Purchase Contracts selected or called for redemption
or with respect to which such right has been exercised, (iii) at any given
date, if such date is on or after the Settlement Date or date of redemption, as
applicable, with respect to any Purchase Contracts evidenced by such Unit
Certificate, except with respect to any Registered Debt Security or portion
thereof evidenced by such Unit Certificate that remains or will remain
Outstanding following such Settlement Date or date of redemption (or such last
exercise date) or (iv) at any other date specified pursuant to Section 2.03. In
lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified in clauses (i) and (ii) of the preceding paragraph, the
Agent shall deliver or cause to be delivered on the applicable Settlement Date,
redemption date or exercise date (i) in respect of Purchase Contracts or Debt
Securities constituting a part of the Units evidenced by such Unit Certificate
that are selected or called for redemption, the redemption price of such
Purchase Contracts or Debt Securities or (ii) in respect of Purchase Contracts
constituting a part of the Units evidenced by such Unit Certificate with
respect to which a Cash Settlement or Debt Security Settlement (or any
equivalent manner of settlement) has taken place, (x) the Purchase Contract
Property (or cash value thereof), purchase price, cash settlement value,
Settlement Amount or other amount, as the case may be, deliverable with respect
to such Purchase Contracts (and, in the case of an effective Cash Settlement
(or any equivalent manner of settlement), the related Debt Securities) or (y)
if a Purchase Contract Default has occurred by virtue of the Corporation's
having failed to deliver the cash value of the Purchase Contract Property,
purchase price, cash settlement value, Settlement Amount or other amount, as
the case may be, deliverable against tender by the Agent of the purchase price,
cash value of the Purchase Contract Property or other Settlement Amount,
exercise price or other amount, as the case may be, such purchase price, cash
value of the Purchase Contract Property or Settlement Amount or other amount,
if any, received by the Agent from the Holder in respect of the Settlement of
such Purchase Contracts or in respect of principal with respect to the related
Debt Securities received by the Agent.
Upon the issuance of any new Unit Certificate under this Section, the
Corporation and the Agent 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 Agent) connected
therewith.
Every new Unit Certificate executed pursuant to this Section in lieu
of any destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Corporation and of the Holder (with
respect to any Purchase Contracts constituting a part of the Units evidenced
thereby), whether or not the destroyed, lost or stolen Unit Certificate (and
the Securities evidenced thereby) shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Unit Certificates delivered 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 Unit
Certificates.
SECTION 2.10. Persons Deemed Owners. Prior to due presentment of a
Unit Certificate of any series for registration of transfer, the Corporation,
the Trustee, the Collateral Agent and the Agent, as appropriate, and any agent
of the Corporation, the Trustee, the Collateral Agent or the Agent, as
appropriate, may treat the Person in whose name any Registered Security
evidenced by such Unit Certificate is registered as the owner of the Units
evidenced thereby for all purposes whatsoever, whether or not payment with
respect to any Security constituting a part of the Units evidenced thereby
shall be overdue and notwithstanding any notice to the contrary. None of the
Corporation, the Trustee, the Agent, the Collateral Agent or any agent of the
Corporation, the Trustee, the Collateral Agent or the Agent shall be affected
by notice to the contrary.
SECTION 2.11. Cancellation. Subject to Section 3.07, all Unit
Certificates surrendered for payment, and all Unit Certificates surrendered for
redemption of any Debt Securities, Prepaid Purchase Contracts or Purchase
Contracts evidenced thereby, termination or settlement of any Purchase
Contracts evidenced thereby, delivery of Purchase Contract Property or
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee or the Agent, as appropriate, be delivered to the Trustee
and/or the Agent, as appropriate, and, if not already cancelled, any Debt
Securities, Prepaid Purchase Contracts or Purchase Contracts evidenced by such
Units shall be promptly cancelled by the Trustee and/or the Agent, as
appropriate. The Corporation may at any time deliver to the Trustee and/or the
Agent, as appropriate, for cancellation any Unit Certificates previously
authenticated, countersigned, executed and delivered hereunder and under the
Indenture, which the Corporation may have acquired in any manner whatsoever,
and all Unit Certificates so delivered shall, upon Issuer Order of the
Corporation, be promptly cancelled by the Trustee and/or the Agent, as
appropriate. No Unit Certificates shall be authenticated, countersigned and
executed in lieu of or in exchange for any Unit Certificates cancelled as
provided in this Section, except as permitted by this Agreement. All cancelled
Unit Certificates held by the Agent shall be disposed of in accordance with its
customary procedures and a certificate of their disposition shall be delivered
by the Agent to the Corporation, unless by Issuer Order the Corporation shall
direct that cancelled Unit Certificates be returned to it.
If the Corporation or any Affiliate of the Corporation shall acquire
any Unit Certificate, such acquisition shall not operate as a cancellation of
such Unit Certificate unless and until such Unit Certificate is delivered to
the Trustee and/or the Agent, as appropriate, for the purpose of cancellation.
SECTION 2.12. Exchange of Global Units and Definitive Units. Holders
of Global Units of any series shall receive Definitive Units of such series in
exchange for interests in such Global Units if DTC notifies the Corporation
that it is unwilling or unable to continue as Depositary with respect to the
Global Units of such series or if at any time it ceases to be a clearing agency
under the Exchange Act, and a successor Depositary registered as a clearing
agency under the Exchange Act is not appointed by the Corporation within 90
days after receipt of such notice or after it becomes aware that DTC has ceased
to be such a clearing agency.
If so provided pursuant to Section 2.03, interests in such Global
Units may also be transferred or exchanged for Definitive Units upon the
request of the Depositary to the Trustee and/or the Agent, as appropriate, to
authenticate, countersign and execute, as the case may be, Unit Certificates
representing Definitive Units (such request being referred to herein as an
"Optional Definitive Unit Request").
Definitive Units exchanged for interests in Global Units pursuant to
this Section 2.12 shall be denominated in the amounts and registered in the
name of such Person or Persons as the Depositary shall instruct the Agent and
the Trustee, as appropriate.
If so specified pursuant to Section 2.03, Holders of Definitive Units
may transfer or exchange such Definitive Units for interests in Global Units by
depositing the Unit Certificates evidencing such Definitive Units with the
Agent and requesting the Agent and the Trustee, as appropriate, to effect such
exchange. The Agent shall notify the Depositary of any such exchange and, upon
delivery to the Agent and the Trustee, as appropriate, of the Unit Certificates
evidencing the Definitive Units to be so transferred or exchanged, the Agent
shall take all actions required with respect to any Global Securities evidenced
by such Global Units and Unit Certificates evidencing the remaining Definitive
Units, if any, will be issued in accordance with Section 2.08.
ARTICLE 3
THE PURCHASE CONTRACTS
SECTION 3.01. Form and Execution of Purchase Contracts; Temporary
Purchase Contracts. (a) Purchase Contracts of each series shall be
substantially in the forms attached as Exhibit A, as appropriate, or in such
form (not inconsistent with this Agreement) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment, in each
case, which may be included in any Board Resolution or Officer's Certificate
made pursuant to this Agreement) or in one or more agreements supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Agreement. The
Purchase Contracts may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the officers of the Corporation executing the same
may approve (execution thereof to be conclusive evidence of such approval) and
that are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any SRO on which the Purchase
Contracts of such series may be listed or quoted, or of any securities
depository, or to conform to general usage. Purchase Contracts shall be signed
on behalf of the Corporation by the chairman or vice chairman of the Board of
Directors, the president, the chief financial officer, the treasurer or any
managing director of the Corporation or such other person specifically
designated by the Board of Directors or the Executive Committee thereof to
execute Purchase Contracts, which signature may or may not be attested by the
secretary or an assistant secretary of the Corporation. The signature of any of
such officers may be either manual or facsimile. Typographical and other minor
errors or defects in any such signature shall not affect the validity or
enforceability of any Purchase Contract that has been duly countersigned and
delivered by the Agent.
(b) In case any officer of the Corporation who shall have signed a
Purchase Contract, either manually or by facsimile signature, shall cease to be
such officer before such Purchase Contract shall have been countersigned and
delivered by the Agent to the Corporation or delivered by the Corporation, such
Purchase Contract nevertheless may be countersigned and delivered as though the
person who signed such Purchase Contract had not ceased to be such officer of
the Corporation; and a Purchase Contract may be signed on behalf of the
Corporation by any person who, at the actual date of the execution of such
Purchase Contract, shall be a proper officer of the Corporation to sign such
Purchase Contract, although at the date of the execution of this Agreement any
such person was not such officer.
(c) Pending the preparation of final Purchase Contracts of any
series, the Corporation may execute and the Agent shall countersign and deliver
temporary Purchase Contracts (printed, lithographed, typewritten or otherwise
produced, in each case in form satisfactory to the Agent). Such temporary
Purchase Contracts shall be issuable substantially in the form of the final
Purchase Contracts but with such omissions, insertions and variations as may be
appropriate for temporary Purchase Contracts, all as may be determined by the
Corporation with the concurrence of the Agent. Such temporary Purchase
Contracts may contain such reference to any provisions of this Agreement as may
be appropriate. Every such temporary Purchase Contract shall be executed by the
Corporation and shall be countersigned by the Agent upon the same conditions
and in substantially the same manner, and with like effect, as the final
Purchase Contracts. Without unreasonable delay, the Corporation shall execute
and shall furnish final Purchase Contracts and thereupon such temporary
Purchase Contracts may be surrendered in exchange therefor without charge, and
the Agent shall countersign and deliver in exchange for such temporary Purchase
Contracts final Purchase Contracts evidencing a like aggregate number of
Purchase Contracts of the same series and of like tenor as those evidenced by
such temporary Purchase Contracts. Until so exchanged, such temporary Purchase
Contracts shall be entitled to the same benefits under this Agreement as final
Purchase Contracts.
SECTION 3.02. Number Unlimited Issuable in Series. (a) The aggregate
number of Purchase Contracts that may be delivered under this Agreement is
unlimited.
(b) The Purchase Contracts may be issued in one or more series. There
shall be established in or pursuant to one or more Board Resolutions (and to
the extent established pursuant to rather than set forth in a Board Resolution,
in an Officer's Certificate detailing such establishment) or established in one
or more agreements supplemental hereto, prior to the initial issuance of
Purchase Contracts of any series:
(i) the designation of the Purchase Contracts of the series,
which shall distinguish the Purchase Contracts of the series from the
Purchase Contracts of all other series;
(ii) any limit upon the aggregate number of the Purchase
Contracts of the series that may be countersigned and delivered under
this Agreement (except for Purchase Contracts countersigned and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Purchase Contracts of the series);
(iii) the specific property (the "Purchase Contract Property")
used to determine the amount payable upon settlement of the Purchase
Contracts of the series, and the amount of such property (or the
method for determining the same);
(iv) whether the Purchase Contracts of the series provide for the
purchase by the Corporation and the sale by the Holder or the sale by
the Corporation and the purchase by the Holder of the Purchase
Contract Property;
(v) in the case of Purchase Contracts that obligate the
Corporation to sell, and the Holder to purchase, Purchase Contract
Property, the Purchase Price at which and, if other than U.S. Dollars,
the coin or currency or composite currency with which the Purchase
Contract Property is to be purchased by the Holder upon settlement of
the Purchase Contracts of the series (or the method for determining
the same);
(vi) in the case of Purchase Contracts that obligate the
Corporation to purchase, and the Holders to sell, Purchase Contract
Property, the amount payable by the Corporation in settlement of the
Purchase Contracts of the series (or the method for determining the
same) (the "Settlement Amount") and, if other than U.S. Dollars, the
coin or currency or composite currency in which such Settlement Amount
is to be paid;
(vii) the method of settlement of the Purchase Contracts of the
series;
(viii) the specific date or dates on which the Purchase Contracts
will be settled, whether the settlement may be accelerated by the
Corporation or the Holders thereof and, if so, the initial accelerated
settlement date, the minimum number of Purchase Contracts that may be
accelerated and the minimum number of Purchase Contracts greater than
zero that must remain Outstanding immediately following such
acceleration;
(ix) whether any Purchase Contracts of the series will be issued
in global form or definitive form or both, and whether and on what
terms (if different from those set forth herein) Purchase Contracts in
one form may be converted into or exchanged for Purchase Contracts in
the other form;
(x) any agents, depositaries, authenticating or paying agents,
transfer agents or registrars or any determination or calculation
agents or other agents with respect to Purchase Contracts of the
series;
(xi) whether and on what terms the Purchase Contracts of the
series may be separated from the other components of the Units of
which the Purchase Contracts are a component;
(xii) whether the Purchase Contracts of such series will be
subject to redemption by the Corporation and, if so, the initial
redemption date, the minimum number of Purchase Contracts that may be
redeemed and the minimum number of Purchase Contracts greater than
zero that must remain Outstanding immediately following such
redemption; and
(xiii) any other terms of the Purchase Contracts of the series
(which terms shall not be inconsistent with the provisions of this
Agreement).
(c) All Purchase Contracts of any one series shall be substantially
identical, except as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set forth in any
such agreement supplemental hereto. All Purchase Contracts of any one series
need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Agreement, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such agreement
supplemental hereto.
SECTION 3.03. Countersignature, Execution on Behalf of Holder and
Delivery of Purchase Contracts. (a) The Corporation may deliver Purchase
Contracts of any series executed by the Corporation to the Agent for
countersignature and execution on behalf of the Holders, together with the
applicable documents referred to below in this Section, and the Agent shall
thereupon countersign, execute on behalf of the Holders and deliver such
Purchase Contracts to or upon the order of the Corporation (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Agent as may be specified from time to time by an Issuer
Order. If provided for in such procedures, such Issuer Order may authorize
countersignature, execution on behalf of the Holders and delivery pursuant to
oral instructions from the Corporation or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In countersigning such
Purchase Contracts, executing such Purchase Contracts on behalf of the Holders
and accepting the responsibilities under this Agreement in relation to the
Purchase Contracts, the Agent shall be entitled to receive (in the case of
subparagraphs (ii), (iii) and (iv) below only at or before the time of the
first request of the Corporation to the Agent to countersign and execute on
behalf of the Holders Purchase Contracts in a particular form) and shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(i) an Issuer Order requesting such countersignature and
execution and setting forth delivery instructions if the Purchase
Contracts are not to be delivered to the Corporation;
(ii) any Board Resolution, Officer's Certificate and/or executed
supplemental agreement pursuant to which the forms and terms of the
Purchase Contracts were established;
(iii) an Officer's Certificate setting forth the forms and terms
of the Purchase Contracts, stating that the form or forms and terms of
such Purchase Contracts have been established pursuant to Sections
3.01 and 3.02 and comply with this Agreement, and covering such other
matters as the Agent may reasonably request; and
(iv) At the option of the Corporation, either an Opinion of
Counsel or a letter addressed to the Agent permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(A) the forms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions
of this Agreement;
(B) the terms of the Purchase Contracts have been duly
authorized and established in conformity with the provisions
of this Agreement and certain terms of the Purchase Contracts
have been established pursuant to a Board Resolution, an
Officer's Certificate or a supplemental agreement in
accordance with this Agreement, and when such other terms as
are to be established pursuant to procedures set forth in an
Issuer Order shall have been established, all terms will have
been duly authorized by the Corporation and will have been
established in conformity with the provisions of this
Agreement; and
(C) when the Purchase Contracts have been executed by
the Corporation and by the Agent on behalf of the Holders and
countersigned by the Agent in accordance with the provisions
of this Agreement and delivered to and duly paid for by the
purchasers thereof, subject to such other conditions as may
be set forth in such opinion of counsel, they will have been
duly issued under this Agreement and will be valid and
legally binding obligations of the Corporation, enforceable
in accordance with their respective terms, and will be
entitled to the benefits of this Agreement.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of New
York and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Agent), who shall be counsel
reasonably satisfactory to the Agent, in which case the opinion shall state
that such counsel believes he and the Agent are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Corporation and its subsidiaries and certificates of public officials.
(b) The Agent shall have the right to decline to countersign, execute
on behalf of the Holders and deliver any Purchase Contract under this Section
if the Agent, being advised by counsel, determines that such action may not
lawfully be taken by the Corporation or if the Agent in good faith by its board
of directors or board of trustees determines that such action would expose the
Agent to personal liability to existing registered or beneficial holders of
Purchase Contracts or would affect the Agent's own rights, duties or immunities
under the Purchase Contracts, this Agreement or otherwise.
(c) If the Corporation shall establish pursuant to Section 3.02 that
the Purchase Contracts of a series are to be evidenced by one or more Global
Purchase Contracts, then unless otherwise agreed between the Corporation and
the Agent the Corporation shall execute and the Agent shall, in accordance with
this Section and the Issuer Order with respect to such series, countersign,
execute on behalf of the Holders and deliver one or more Global Purchase
Contracts that (i) shall evidence all or a portion of the Purchase Contracts of
such series issued in such form and not yet cancelled, (ii) shall be registered
in the name of the Depositary for such Purchase Contracts or the nominee of
such Depositary, (iii) shall be delivered by the Agent to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Purchase Contracts in definitive registered form, this
Purchase Contract may not be transferred except as a whole by the Depositary to
the nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
(d) If so required by applicable law, each Depositary for a series of
Registered Purchase Contracts must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute
or regulation.
(e) Each Purchase Contract shall be dated the date of its
countersignature. A Purchase Contract shall not be valid for any purpose,
unless and until such Purchase Contract has been executed by the Agent on
behalf of the Holder and countersigned by the manual signature of an authorized
officer of the Agent. Such countersignature by an authorized officer of the
Agent upon any Purchase Contract executed by the Corporation in accordance with
this Agreement shall be conclusive evidence that the Purchase Contract so
countersigned has been duly delivered and issued hereunder.
SECTION 3.04. Further Provisions Relating to Issuance of Purchase
Contracts. Purchase Contracts may be executed by the Corporation and delivered
to the Agent upon the execution of this Agreement or from time to time
thereafter and in connection with exchanges, substitutions and transfers of
Units of any series. Subsequent to the original issuance of the Purchase
Contracts, the Agent shall, subject to the conditions set forth in this Article
and Article Two, countersign and execute on behalf of the Holder, Purchase
Contracts issued in exchange or substitution for or upon transfer of Unit
Certificates evidencing one or more previously countersigned and executed
Unsettled Purchase Contracts evidenced by the Unit Certificates to be
exchanged, substituted for or transferred.
SECTION 3.05. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.02, the
Unsettled Purchase Contracts of any series will either (i) obligate the
Corporation to deliver the cash value of Purchase Contract Property or (ii)
obligate the Holders thereof to deliver the cash value of Purchase Contract
Property, in each case specified pursuant to Section 3.02 (or a quantity
calculated by a method specified pursuant to Section 3.02) on the Stated
Settlement Date.
(b) If this Section is specified as applicable pursuant to Section
3.02, the Corporation may, subject to paragraph (c) of this Section, at its
sole option and in its sole discretion at any time or from time to time (unless
otherwise specified pursuant to Section 3.02) on not less than 30 nor more than
60 days' written notice (an "Acceleration Notice") to the Agent and the
Holders, in the manner provided in Section 11.05 and Section 11.06,
respectively, accelerate the obligations of the Holders of at least the Minimum
Acceleration Amount of Unsettled Purchase Contracts or the Corporation, as the
case may be, to deliver the cash value of Purchase Contract Property on any
Accelerated Settlement Date (provided that such Accelerated Settlement Date may
not be prior to the Initial Acceleration Date), for each Unsettled Purchase
Contract subject to such acceleration; provided that no such acceleration with
respect to fewer than all Unsettled Purchase Contracts shall (unless otherwise
specified pursuant to Section 3.02) result in fewer than the Minimum Remaining
Amount of Unsettled Purchase Contracts remaining Outstanding after such
Accelerated Settlement Date; and provided further that the Corporation shall
have the right, in its sole discretion, on or before the 10th day prior to such
Accelerated Settlement Date, to rescind any Acceleration Notice by written
notice to the Agent and written notice to the Holders pursuant to Sections
11.05 and 11.06 (whereupon all rights and obligations of the Corporation and
the Holders that would have arisen as a result of such Acceleration Notice
shall be of no force and effect), without prejudice to the rights of the
Corporation, including without limitation its rights to deliver an Acceleration
Notice in the future. If fewer than all Unsettled Purchase Contracts of such
series are to be accelerated to a particular Accelerated Settlement Date, the
Agent shall select from among the Unsettled Purchase Contracts such number
thereof as are being accelerated on a pro rata basis, by lot or by such other
means reasonably acceptable to the Agent, with appropriate adjustment being
made to prevent the fractional acceleration of the settlement of Purchase
Contracts, such that the settlement of Purchase Contracts are accelerated only
in whole and not in part.
(c) Each Holder of a Unit, by his acceptance thereof, authorizes and
directs the Agent to enter into, deliver and perform any Purchase Contracts
that are part of such Unit on his behalf, agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under the
Purchase Contracts evidenced by such Unit, and consents and agrees to the
provisions hereof. If the provisions of Section 3.06 are applicable to the
Units of any series, each Holder of a Unit of such series, by his acceptance
thereof, further covenants and agrees that, to the extent such Holder is deemed
to have elected to satisfy its obligations under any Purchase Contracts that
are part of such Unit by effecting a Debt Security Settlement as provided in
Section 3.06, and subject to the terms thereof, redemption payments with
respect to principal of any Debt Securities that are part of such Unit shall be
applied by the Agent in satisfaction of such Holder's obligations under such
Purchase Contract on the applicable Settlement Date or in payment of such
exercise price on the applicable exercise date.
(d) Upon registration of transfer of a Purchase Contract of any
series, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Agent
pursuant to this Article Three) under the terms of this Agreement and such
Purchase Contract, and the transferor shall be released from the obligations
under the Purchase Contract so transferred.
(e) Each Holder of a Unit of any series, by his acceptance thereof,
authorizes the Agent to execute on his behalf any Purchase Contracts that are
part of such Unit, authorizes and directs the Agent on his behalf to take such
other action (including without limitation any actions required under Article
Five), and covenants and agrees to take such other action as may be necessary
or appropriate, or as may be required by the Agent, to effect the provisions of
this Agreement, the Units and the Purchase Contracts and appoints the Agent as
his attorney-in-fact for any and all such purposes.
SECTION 3.06. Payment of Settlement Amount. (a) Unless otherwise
specified pursuant to Section 3.02 (in the case of a Unit of any series
consisting of a Debt Security and a Purchase Contract that obligates the
Corporation to sell, and the Holder to purchase, Purchase Contract Property),
the Settlement Amount payable in respect of such Purchase Contract shall be
payable at the Corporate Trust Office of the Agent:
(i) at the option of the Holder of the Unit of which such
Purchase Contract is part, after receipt by the Agent of written
notice from the Holder not less than 10 days nor more than 20 days
prior to the applicable Settlement Date by delivery by such Holder not
later than 11:00 a.m., New York City time, on the Business Day
immediately preceding the Settlement Date, in the case of the Purchase
Contract, of the Settlement Amount (a "Cash Settlement"), to the
Agent, in the case of the Purchase Contract in immediately available
funds payable to or upon the order of the Corporation; or
(ii) by application of any payment received by the Agent (whether
in its capacity as Agent, Collateral Agent, Trustee or Paying Agent)
with respect to the principal of any Debt Security included in the
Unit of which such Purchase Contract constitutes a part, as provided
in paragraph (f) of this Section (a "Debt Security Settlement").
A Holder of such Units who fails to provide notice to the Agent as
provided above that it will make a Cash Settlement with respect to the
settlement of a Purchase Contract, or a Holder of such Units who provides such
notice but does not effect a Cash Settlement in accordance with the terms of
this Section 3.06, will be deemed to have elected to have the Settlement Amount
paid pursuant to a Debt Security Settlement.
(b) Unless otherwise specified pursuant to Section 3.02, to be
effective, payment with respect to a Purchase Contract pursuant to a Cash
Settlement must be deposited with the Agent by 11:00 a.m., New York City time,
on the Business Day immediately preceding the Settlement Date and must be made
with respect to all (and not fewer than all) of the Purchase Contracts to be
settled on such Settlement Date or exercise date (i) included in the Definitive
Units that are registered in the name of the Person effecting Cash Settlement
in the Purchase Contract Register, (ii) included in the Global Units that are
beneficially owned by the Person effecting Cash Settlement as specified in the
records of the direct and indirect participants of the Depositary or (iii) in
the case of Purchase Contracts included in Unregistered Definitive Units, owned
by the Person effecting Cash Settlement, and, in the case of (ii) and (iii)
above, as certified in writing by such Person, which certification shall be
collected, in the case of (ii) above, on behalf of such Person by the direct
and indirect participants in the Depositary through which such Person holds
interests in the Global Units, and which will be provided to the Agent, in the
case of (iii) above, by such Person or, in the case of (ii) above, by the
Depositary or any direct participant of such Depositary, at the time payment
pursuant to a Cash Settlement is deposited with the Agent. Any attempted Cash
Settlement other than in accordance with this Section 3.06 shall be deemed to
have not been made and any payments made to the Agent by a Holder not complying
with this Section 3.06 shall be returned by the Agent to such Holder.
(c) Unless a Holder of a Unit of any series has effected a Cash
Settlement in satisfaction of his obligations under any Purchase Contracts
constituting a part of such Unit that obligate the Holder, or represent the
Holder's right, to purchase Purchase Contract Property, any payment with
respect to principal of any Debt Security evidenced by such Unit that is
received by the Agent (whether in its capacity as Agent, Collateral Agent,
Trustee or Paying Agent) in connection with any Debt Security Settlement shall
be paid by the Agent to the Collateral Agent for delivery to the Corporation in
satisfaction of the Holder's obligations under the Global Purchase Contract or
Purchase Contracts constituting a part of such Units. Any payment that is
received by the Agent (whether in its capacity as Agent, Collateral Agent,
Trustee or Paying Agent) with respect to interest on a Debt Security related to
a Purchase Contract that has been settled in accordance with Section
3.06(a)(ii) shall be distributed to the Holders of Units upon surrender of the
appropriate Unit Certificate.
(d) Except as otherwise specified pursuant to Section 3.02, all
payments to be made by the Holders or by the Agent (whether in its capacity as
Agent, Collateral Agent, Trustee or Paying Agent) shall be made in lawful money
of the United States of America, by certified check or wire transfer in
immediately available funds in accordance with such regulations as the Agent
may reasonably establish consistent with the provisions of this Agreement.
SECTION 3.07. Delivery of Settlement Amount. Delivery of the
Settlement Amount to the Holder or the Corporation, as the case may be, shall
be made only upon delivery to the Agent of the related Unit Certificate.
Upon receipt of any Unit Certificate, the Agent shall cancel such Unit
Certificate in accordance with Section 2.11 as a result of the delivery
referred to in the preceding paragraph. If any Debt Securities relating to
Closed Purchase Contracts constituting a part of Units evidenced by such Unit
Certificate remain Outstanding as a result of Cash Settlement, the Corporation
shall execute and the Trustee shall authenticate and deliver (i) in the case of
Definitive Units, to the Holder thereof, in accordance with the terms of the
Indenture, a new certificate or certificates representing solely the principal
amount of Debt Securities still Outstanding (ii) in the case of Global Units,
if a Global Debt Security not constituting part of a Global Unit has not
previously been issued by the Corporation, a second Global Debt Security
representing Debt Securities still Outstanding that are not part of Units. If a
second Global Debt Security referred to in clause (ii) of the immediately
preceding sentence has already been issued, the Agent shall note thereon an
appropriate increase in the number of Debt Securities represented by such
Global Debt Security.
SECTION 3.08. Charges and Taxes. The Corporation shall not be required
to pay any tax or taxes that may be payable with respect to any exchange of or
substitution for a Unit Certificate or Security and the Corporation shall not
be required to issue or deliver such Unit Certificate or such Security unless
or until the Person or Persons requesting the transfer or issuance thereof
shall have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been paid.
The Agent shall be under no obligation to pay any such tax.
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations. If at any time there shall
have occurred an Event of Default with respect to any Debt Securities
constituting a part of any Units that has resulted in the principal of any Debt
Securities being declared due and payable immediately pursuant to Section [__]
of the Indenture, then the Holders of not less than 25% of all Unsettled
Purchase Contracts constituting a part of any Units comprising Debt Securities
subject to such declaration may on behalf of all Holders of such Unsettled
Purchase Contracts by notice in writing to the Corporation and Agent declare
the obligations of such Holders to purchase or sell, as the case may be, and of
the Corporation to sell or purchase, as the case may be, the quantity of
Purchase Contract Property specified pursuant to Section 3.02 under each such
Unsettled Purchase Contract to be accelerated to the date of such declaration
and, upon any such declaration, such obligations shall be so accelerated. The
foregoing provision is subject to the condition that if, at any time prior to
settlement of such Purchase Contracts, the declaration with respect to Debt
Securities referred to in the immediately preceding sentence and its
consequences are rescinded and annulled in accordance with Section [__] of the
Indenture, the acceleration of the obligations with respect to Unsettled
Purchase Contracts referred to in the immediately preceding sentence and its
consequences may be annulled and rescinded by vote of the Holders of not less
than 25% of all affected Unsettled Purchase Contracts Outstanding.
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders. (a) The Holder of any Unit shall have the
right, which is absolute and unconditional, to purchase or sell, as the case
may be, Purchase Contract Property pursuant to such Purchase Contract and to
institute suit for the enforcement of such right, and such right shall not be
impaired without the consent of such Holder.
(b) No Holder of any Unit shall have any right by virtue of or by
availing itself of any provision of this Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Agreement, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given written notice to the
Agent and the Corporation of a Default and of the continuance thereof and, (i)
in the case of an Event of Default under Debt Securities or the Indenture, the
procedures (including notice to the Trustee and the Corporation) described in
Article [__] of the Indenture have been complied with and (ii) in the case of a
Purchase Contract Default specified in clause (ii) of the definition thereof,
unless the Holders of not less than 25% of all affected Purchase Contracts
comprised by all Units then Outstanding shall have made written request upon
the Agent to institute such action or proceedings in its own name as Agent
hereunder and shall have offered to the Agent such reasonable indemnity as it
may require pursuant to Article Six, and the Agent for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute such action or proceedings and no direction inconsistent with such
request shall have been given to the Agent in writing by holders of a majority
of all affected Purchase Contracts constituting parts of Units then
Outstanding. Any Holder of a Unit may then (but only then) seek to enforce the
performance of the covenant or agreement with respect to which such Purchase
Contract Default exists; it being intended and expressly covenanted by the
Holder of each Unit with every other Holder and the Agent that no Holder shall
have any right by virtue of or by availing itself of any provision of this
Agreement to affect, disturb or prejudice the rights of any other Holder, or to
obtain or seek to obtain priority over or preference to any other Holder, or to
enforce any right under this Agreement, except in accordance with this Section
or the Indenture and for the equal, ratable and common benefit of all Holders.
For the protection and enforcement of the provisions of this Section, each and
every Holder of a Unit and the Agent shall be entitled to such relief as can be
given either at law or in equity.
SECTION 4.03. Restoration of Rights and Remedies. If any Holder of
Units has instituted any proceeding to enforce any right or remedy under this
Agreement and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Holder, then and in every such
case, subject to any determination in such proceeding the Corporation, the
Agent, the Trustee and such Holder shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies the
Corporation, the Agent, the Trustee and such Holder shall continue as though no
such proceeding had been instituted.
SECTION 4.04. Rights and Remedies Cumulative. Subject to Section 4.02,
and except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Unit Certificates, no right or remedy
herein conferred upon or reserved to the Holders of Units 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 4.05. Delay or Omission Not Waiver. No delay or omission of
any Holder to exercise any right or remedy accruing upon any Default shall
impair any such right or remedy or constitute a waiver of any such Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
SECTION 4.06. Waiver of Past Defaults. The Holders of not less than a
majority of all affected Purchase Contracts evidenced by Units of all series at
the time Outstanding may on behalf of the Holders of all affected Units waive
any past Purchase Contract Default hereunder and its consequences, except,
unless theretofore cured (i) a Purchase Contract Default resulting from the
failure of the Corporation to deliver (A) in the case of Purchase Contracts
obligating the Corporation to sell, and the Holders to purchase, Purchase
Contract Property (or the cash value thereof) Purchase Contract Property (or
the cash value thereof) against tender of payment therefor or (B) in the case
of Purchase Contracts obligating the Corporation to purchase, and the Holders
to sell, Purchase Contract Property (or the cash value thereof) the applicable
Purchase Price or other Settlement Amount specified pursuant to Section 3.02
against tender of Purchase Contract Property or other amount specified pursuant
to Section 3.02 therefor or (ii) a Purchase Contract Default with respect to a
covenant or provision hereof which under Article Seven cannot be modified or
amended without approval of the Holder of each affected Purchase Contract that
is a part of an Outstanding Unit of any series. In the case of any such waiver,
the Holders, the Agent and the Corporation shall be restored to their former
positions and rights hereunder, respectively.
Upon any such waiver, such Purchase Contract Default shall cease to
exist, for every purpose of this Agreement, but no such waiver shall extend to
any subsequent or other Purchase Contract Default or impair any right
consequent thereon unless so expressly therein provided.
SECTION 4.07. Undertaking for Costs. All parties to this Agreement
agree, and each Holder of any Unit by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Agent for any action taken, suffered or omitted by it as Agent, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the Agent, to any suit instituted by any Holder
of Units, or group of Holders, holding in the aggregate more than 10% of the
Outstanding Units, or to any suit instituted by any Holder for enforcement of
the right to purchase or sell Purchase Contract Property under the Purchase
Contracts constituting a part of the Units held by such Holder or to receive
payment of the applicable Purchase Price (or other Settlement Amount that may
be specified pursuant to Section 3.02) with respect thereto.
SECTION 4.08. Waiver of Stay or Extension Laws. The Corporation
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, that may affect the covenants or the performance
of this Agreement; and the Corporation (to the extent that it may lawfully do
so) each 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 Agent, or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.09. Agent May File Proofs of Claims. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy or other judicial
proceeding relating to the Corporation or the property of the Corporation or
its creditors, the Agent shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Agent, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or other similar official in
any such proceeding is hereby authorized by each Holder to make such payments
to the Agent, and in the event that the Agent shall consent to the making of
such payments directly to the Holders, to pay to the Agent any amount due to it
hereunder; provided, however, that nothing herein shall be deemed to authorize
the Agent to authorize or consent to or vote for or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Units or the rights of any Holder thereof, or to
authorize the Agent to vote in respect of the claim of any Holder of Units in
any such proceeding.
SECTION 4.10. Suits for Enforcement. In case a Purchase Contract
Default has occurred, has not been waived and is continuing, and subject to
receipt by the Agent of the request referred to in Section 4.02 or the
direction referred to in Section 4.11 and the security or indemnity referred to
in Section 6.03(f), the Agent shall have the right to enforce, on behalf of the
Holders, the Purchase Contracts and the covenants and agreements of the
Corporation contained in the Purchase Contracts and in this Agreement with
respect to the Purchase Contracts and to proceed to protect and enforce such
rights by appropriate judicial proceedings to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any such covenant or agreement contained in this
Agreement or in the Purchase Contracts or in aid of the exercise of any power
granted in this Agreement or to enforce any other legal or equitable right
vested in the Agent by this Agreement or by law.
All rights of action and of asserting claims under this Agreement, or
under the Units or any Securities comprised by the Units, may be enforced by
the Agent without the possession of the Units or any of the Securities
comprised by the Units or the production thereof on any trial or other
proceedings relative thereto, and any such actions or proceedings instituted by
the Agent shall be brought in its own name as agent and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Agent, each predecessor Agent and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Units or
Securities in respect of which such action was taken.
SECTION 4.11. Control by Holders. The Holders of a majority of
affected Outstanding Purchase Contracts constituting a part of any Outstanding
Units shall have the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the Agent, or exercising any power
conferred on the Agent with respect to such Purchase Contracts by this
Agreement; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Agreement and provided further
that (subject to the provisions of Section 6.01) the Agent shall have the right
to decline to follow any such direction if the Agent, being advised by counsel,
shall determine that the action or proceeding so directed may not lawfully be
taken or if the Agent in good faith by its board of directors or board of
trustees or a committee of its Responsible Officers, shall determine that the
action or proceedings so directed could involve the Agent in personal liability
or if the Agent in good faith shall so determine that the actions or
forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of Units not joining in the giving of
said direction, it being understood that (subject to Section 6.01) the Agent
shall have no duty to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders.
Nothing in this Agreement shall impair the right of the Agent in its
discretion (but subject to Section 4.10) to take any action deemed proper by
the Agent and which is not inconsistent with such direction or directions by
Holders.
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and Remedies of
Collateral Agent; Perfection. In order to secure the observance and performance
of the covenants and agreements of the Holders of Purchase Contracts contained
herein and in such Purchase Contracts, unless otherwise specified pursuant to
Section 2.03:
(a) Effective upon issuance of Units of any series consisting of Debt
Securities and Purchase Contracts, the Holders thereof acting through the
Agent, as their attorney-in-fact, shall be deemed to grant, sell, convey,
assign, transfer and pledge unto the Collateral Agent, as agent of and for the
benefit of the Corporation, as collateral security for the performance when due
by such Holders of their respective obligations hereunder and under the
Purchase Contracts constituting a part of such Units, a security interest in
and to, and a lien upon and right of set-off (the "Pledge") against, all of
their right, title and interest in and to (i) the Pledged Items; (ii) all
additions to and substitutions for such Pledged Items as may be permissible, if
so specified pursuant to Section 3.02; (iii) all income, proceeds and
collections received or to be received, or derived or to be derived, now or any
time hereafter from or in connection with (i) and (ii) above, and (iv) all
powers and rights now owned or hereafter acquired under or with respect to the
Pledged Items (such Pledged Items, additions, substitutions, proceeds,
collections, powers and rights being herein collectively called the
"Collateral").
(b) Prior to or concurrently with the issuance of Global Units of any
series of which Debt Securities and Purchase Contracts constitute a part, the
initial Holders and the Agent shall cause the Debt Securities constituting a
part of such Global Units to be delivered to the Collateral Agent, and, if
specified pursuant to Section 3.02, accompanied by an instrument of transfer
executed in , and the Corporation shall notify the Collateral Agent of the
Pledge and receipt of such notification shall constitute acknowledgment by the
Collateral Agent (as third party in possession or otherwise) of the Pledge and
its holding of the Collateral subject to the Pledge, in each case for purposes
of perfecting the Pledge under applicable law. Subject to the Pledge, the
Holders from time to time of the Units of which the Debt Securities constitute
a part shall have full beneficial ownership of such Debt Securities.
(c) The Collateral Agent shall have all of the rights, remedies and
recourse with respect to the Collateral afforded a secured party by the Uniform
Commercial Code as in effect in the State of New York (whether or not said Code
is in effect in the jurisdiction where the rights and remedies are asserted),
in addition to, and not in limitation of, the other rights, remedies and
recourse afforded to the Collateral Agent by this Agreement.
(d) Each Holder, to the extent permitted by applicable law, by
accepting Units of any series issued hereunder authorizes the Collateral Agent
to execute and file, in the name of such Holder, Uniform Commercial Code
financing or continuation statements (which may be carbon, photographic,
photostatic or other reproductions of this Agreement or of a financing
statement relating to this Agreement) which the Collateral Agent in its sole
discretion (but subject to Section 5.03(f)) may deem necessary or appropriate
to further perfect, or maintain the perfection of the security interests
granted hereby.
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral. Unless otherwise specified pursuant to Section 2.03:
(a) All payments of principal of, or interest on, any Pledged Items
received by the Collateral Agent pursuant to Section 3.06(c) shall be paid by
the Collateral Agent in same day funds no later than 2:00 p.m., New York City
time, on the Business Day such payments are received by the Collateral Agent
or, if received on a day that is not a Business Day or after 12:00 noon, New
York City time, on a Business Day, then such payment shall be made no later
than 9:00 am., New York City time, on the next succeeding Business Day to the
Corporation, in full satisfaction of the respective obligations of the Holders
of the Units of which such Pledged Items are a part under the Purchase
Contracts forming a part of such Units. Any such payments in excess of such
obligations of the Holders shall be promptly paid to the Agent to the account
designated by it for such purpose. All such payments received by the Agent as
provided herein shall be applied by the Agent pursuant to the provisions
hereof.
(b) Upon notice to the Collateral Agent by the Agent that one or more
Holders of Units have elected to effect Cash Settlement of their respective
obligations under the Purchase Contracts forming a part of such Units in
accordance with the terms hereof, and that either the Agent has received from
such Holders, and paid to the Corporation, the related amounts pursuant to the
terms of the Purchase Contracts and this Agreement or no such payment is
required, and that all other conditions to such Cash Settlement have been
satisfied, then the Collateral Agent shall release from the Pledge the Pledged
Items relating to such Purchase Contracts.
SECTION 5.03. Certain Duties and Responsibilities of the Collateral
Agent . The Collateral Agent accepts its duties and responsibilities hereunder
as agent for the Corporation, on and subject to the following terms and
conditions:
(a) The Collateral Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. No provision of
this Agreement shall be construed to relieve the Collateral Agent from
liability for its own negligent action, its own negligent failure to act, or
its own wilful misconduct, except that
(i) the duties and obligations of the Collateral Agent with
respect to the Units shall be determined solely by the express
provisions of this Agreement and the Collateral Agent shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the
Collateral Agent; and
(ii) in the absence of bad faith on its part, the Collateral
Agent may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Collateral Agent and
conforming to the requirements of this Agreement, but in the case of
any such statements, certificates or opinions that by any provision
hereof are specifically required to be furnished to the Collateral
Agent, the Collateral Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement.
(b) The Collateral Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Collateral Agent,
unless it shall be proved that the Collateral Agent was negligent in
ascertaining the pertinent facts.
(c) No provision of this Agreement shall require the Collateral Agent
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.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Collateral Agent shall be subject to the provisions
of this Section.
(e) The Collateral Agent is acting solely as agent for the
Corporation hereunder and owes no fiduciary duties to any Person by virtue of
this Agreement.
(f) Except as specifically provided herein, the Collateral Agent
shall not be responsible for the validity, sufficiency, collectibility or
marketability of any Collateral given to or held by it hereunder or for the
validity or sufficiency of the lien on the Collateral purported to be created
hereby and shall have no obligation to file any financing or continuation
statement with respect to the Collateral in any public office at any time or
time.
SECTION 5.04. Knowledge of the Collateral Agent. The Collateral Agent
shall not be deemed to have knowledge of any default by any person under any
Purchase Contract, unless and until a Responsible Officer of the Collateral
Agent assigned to its Corporate Trustee Administration Department shall have
actual knowledge thereof or shall have received written notice thereof from the
Corporation or any Holder.
SECTION 5.05. Certain Rights of Collateral Agent. Subject to the
provisions of Section 5.03:
(a) the Collateral Agent 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, security 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, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of Directors of
the Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Collateral Agent may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Collateral Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document;
(e) the Collateral Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Collateral Agent shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed with due care
by it hereunder; and
(f) the Collateral Agent shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
SECTION 5.06. Compensation and Reimbursements. The Corporation
agrees:
(a) to pay to the Collateral Agent from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law with regard to the compensation of
a trustee of an express trust),
(b) except as otherwise expressly provided herein, to reimburse the
Collateral Agent and any predecessor Collateral Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of this Agreement (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 Collateral Agent and any predecessor Collateral
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Corporation under this Section to compensate
and indemnify the Collateral Agent and any predecessor Collateral Agent and to
pay or reimburse the Collateral Agent and any predecessor Collateral Agent for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the resignation or removal of such Collateral Agent
or predecessor Collateral Agent or the termination hereof or of any Purchase
Contract. Such additional indebtedness shall be a senior claim to that of the
Units upon all property and funds held or collected by the Collateral Agent as
such, except funds held in trust for the benefit of the Holders of Units, and
the Units are hereby subordinated to such senior claim.
SECTION 5.07. Corporate Collateral Agent Required; Eligibility. There
shall at all times be a Collateral Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, having, together with its
parent, a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal, State or District of Columbia authority
and willing to act on reasonable terms. If such corporation, or its parent,
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Collateral Agent hereunder shall
at all times be the Agent hereunder, the Trustee and a Paying Agent under the
Indenture, subject to receipt of an Opinion of Counsel that the same Person is
not precluded by law from acting in such capacities. If at any time the
Collateral Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. The Collateral Agent may appoint one or
more sub-collateral agents with offices or agencies in a city or cities outside
the United States.
SECTION 5.08. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Collateral Agent and no appointment of a
successor Collateral Agent pursuant to this Article shall become effective
until the acceptance of appointment by the successor Collateral Agent in
accordance with the applicable requirements of Section 5.09.
(b) The Collateral Agent may resign by giving written notice thereof
to the Corporation and the Holders, in accordance with Section 11.05 and
Section 11.06, 60 days prior to the effective date of such resignation. The
Collateral Agent may be removed at any time upon 60 days' notice by the filing
with it of an instrument in writing signed on behalf of the Corporation and
specifying such removal and the date when it is intended to become effective.
If the instrument of acceptance by a successor Collateral Agent required by
Section 5.09 shall not have been delivered to the Collateral Agent within 30
days after the giving of such notice of resignation, the resigning Collateral
Agent may petition any court of competent jurisdiction for the appointment of a
successor Collateral Agent.
(c) If at any time
(i) the Collateral Agent shall cease to be eligible under
Section 5.07, or shall cease to be eligible as Agent hereunder, as
Trustee under the Indenture, and shall fail to resign after written
request therefor by the Corporation, or
(ii) the Collateral Agent shall become incapable of acting with
respect to the Collateral or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Collateral Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Collateral Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Corporation, by Board Resolution, may remove the
Collateral Agent and appoint a successor Collateral Agent.
(d) If the Collateral Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Collateral
Agent for any cause, the Corporation, by Board Resolution, shall promptly
appoint a successor Collateral Agent or Collateral Agents (other than the
Corporation) and shall comply with the applicable requirements of Section 5.09.
(e) The Corporation shall give, or shall cause such successor
Collateral Agent to give, notice of each resignation and each removal of the
Collateral Agent and each appointment of a successor Collateral Agent to all
Holders of Units in accordance with Section 11.06. Each notice shall include
the name of the successor Collateral Agent and the address of its Corporate
Trust Office.
SECTION 5.09. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Collateral Agent, every such successor
Collateral Agent so appointed shall execute, acknowledge and deliver to the
Corporation and to the retiring Collateral Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Collateral Agent shall become effective and such successor Collateral Agent,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, agencies and duties of the retiring Collateral Agent, with like
effect as if originally named as Collateral Agent hereunder; but, on the
request of the Corporation or the successor Collateral Agent, such retiring
Collateral Agent shall, upon payment of all amounts due and payable to it
pursuant to Section 5.06, execute and deliver an instrument transferring to
such successor Collateral Agent all the rights and powers of the retiring
Collateral Agent and shall duly assign, transfer and deliver to such successor
Collateral Agent all property and money held by such retiring Collateral Agent
hereunder. Any retiring Collateral Agent shall, nonetheless, retain a prior
claim upon all property or funds held or collected by such Collateral Agent to
secure any amounts then due it pursuant to Section 5.06.
(b) Upon request of any such successor Collateral Agent, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Collateral Agent all such rights,
powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Collateral Agent shall accept its appointment unless
at the time of such acceptance such successor Collateral Agent shall be
eligible under this Article.
(d) Upon acceptance of appointment by any successor Collateral Agent
as provided in this Section, the Corporation shall give notice thereof to the
Holders of Units in accordance with Section 11.06. If the acceptance of
appointment is substantially contemporaneous with the resignation of the
Collateral Agent, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.08. If the Corporation fails
to give such notice within ten days after acceptance of appointment by the
successor Collateral Agent, the successor Collateral Agent shall cause such
notice to be given at the expense of the Corporation.
SECTION 5.10. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Collateral Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Collateral Agent
shall be a party, or any corporation succeeding to all or substantially all the
agency business of the Collateral Agent, shall be the successor of the
Collateral Agent hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation shall be otherwise eligible under this Article.
SECTION 5.11. Money Held in Trust. Money held by the Collateral Agent
in trust hereunder need not be segregated from other funds held by the
Collateral Agent, except to the extent required by law. The Collateral Agent
shall be under no obligation to invest or pay interest on any money received by
it hereunder, except as otherwise agreed with the Corporation. Any interest
accrued on funds deposited with the Collateral Agent or any Paying Agent under
this Agreement shall be paid to the Corporation from time to time and the
Holders of Units (whether or not any Purchase Contracts are to be redeemed with
such funds) shall have no claim to any such interest.
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities. (a) The Agent
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent failure to
act, or its own wilful misconduct, except that
(i) the duties and obligations of the Agent with respect to the
Units shall be determined solely by the express provisions of this
Agreement and the Agent shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Agent; and
(ii) in the absence of bad faith on its part, the Agent may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any such
statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Agent, the Agent shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement.
(c) The Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Agent, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts.
(d) The Agent shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in number of affected Outstanding Purchase Contracts
relating to the time, method and place of conducting any proceeding for any
remedy available to the Agent, or exercising any power conferred upon the
Agent, under this Agreement.
(e) No provision of this Agreement shall require the Agent 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.
(f) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
(g) The Agent is acting solely as agent for the Corporation hereunder
and owes no fiduciary duties to any person by virtue of this Agreement.
SECTION 6.02. Notice of Default. Within 90 days after the occurrence
of any Purchase Contract Default of which a Responsible Officer of the Agent
assigned to its Corporate Trustee Administration Department has actual
knowledge (and except with respect to a Purchase Contract Default under the
Purchase Contracts existing on the Settlement Date, in which event, as promptly
as practicable thereafter) the Agent shall provide to all Holders of Units, in
the manner provided in Section 11.06, notice of such Purchase Contract Default
hereunder, unless such Purchase Contract Default shall have been cured or
waived.
SECTION 6.03. Certain Rights of Agent. Subject to the provisions of
Section 6.01:
(a) the Agent 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, security 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, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an Officer's Certificate or
Issuer Order or Issuer Request and any resolution of the Board of Directors of
the Corporation, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;
(d) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document, but the Agent, in
its discretion, may make reasonable further inquiry or investigation into such
facts or matters related to the issuance of the Debt Securities or Prepaid
Purchase Contracts, as the case may be, and the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the Agent
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Corporation, at
reasonable times during normal business hours, personally or by agent or
attorney;
(e) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Agent shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder;
(f) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request, order or
direction of any of the Holders pursuant to this Agreement, unless such Holders
shall have offered to the Agent reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction;
(g) the Agent shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Agreement; and
(h) the Agent shall not be charged with notice or knowledge of a
Purchase Contract Default unless a Responsible Officer of the Agent assigned to
its Corporate Trustee Administration Department shall have actual knowledge
thereof.
SECTION 6.04. Not Responsible for Recitals or Issuance of Units. The
recitals contained herein, in the Indenture and in the Units, except the
Trustee's and Agent's certificates of authentication or countersignature, shall
be taken as the statements of the Corporation, and none of the Trustee, Agent
or any Authenticating Agent assumes any responsibility for their correctness.
The Agent makes no representations as to the validity or sufficiency of this
Agreement or of the Units. None of the Trustee, Agent or any Authenticating
Agent shall be accountable for the use or application by the Corporation of the
proceeds with respect to Units or be responsible for exercising any remedy
hereunder on behalf of the Holders, except as expressly provided in this
Agreement.
SECTION 6.05. May Hold Units. The Agent, the Collateral Agent, the
Trustee, any Authenticating Agent, any Purchase Contract Registrar or any other
agent of the Corporation, the Trustee, or the Agent, in its individual or any
other capacity, may become the owner or pledgee of Units and may otherwise deal
with the Corporation and receive, collect, hold and retain collections from the
Corporation with the same rights it would have if it were not Authenticating
Agent, Purchase Contract Registrar or such other agent, the Trustee, the
Collateral Agent or the Agent.
SECTION 6.06. Money Held in Trust. Money held by the Agent in trust
hereunder need not be segregated from other funds held by the Agent, except to
the extent required by law. The Agent shall be under no obligation to invest or
pay interest on any money received by it hereunder, except as otherwise agreed
with the Corporation. Any interest accrued on funds deposited with the Agent or
any Paying Agent under this Agreement shall be paid to the Corporation from
time to time and the Holders of Units (whether or not any Purchase Contracts
are to be redeemed with such funds) shall have no claim to any such interest.
SECTION 6.07. Compensation and Reimbursement. The Corporation agrees:
(a) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law with regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Agent and any predecessor Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance with any
provision of this Agreement (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 Agent and any predecessor Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of this Agreement and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
The obligations of the Corporation under this Section to compensate
and indemnify the Agent and any predecessor Agent and to pay or reimburse the
Agent and any predecessor Agent for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the resignation
or removal of such Agent or predecessor Agent or the termination hereof or any
Purchase Contract. Such additional indebtedness shall be a senior claim to that
of the Units upon all property and funds held or collected by the Agent as
such, except funds held in trust for the benefit of the Holders of particular
Units, and the Units are hereby subordinated to such senior claim.
SECTION 6.08. Corporate Agent Required; Eligibility. There shall at
all times be an Agent hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, having, together with its parent, a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal, State or District of Columbia authority and willing to
act on reasonable terms. If such corporation, or its parent, publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. The Agent hereunder shall at all times be the
Collateral Agent hereunder and the Trustee under the Indenture, subject to
receipt of an Opinion of Counsel that the same Person is precluded by law from
acting in such capacities. If at any time the Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article. The
Agent may appoint one or more sub-agents with offices or agencies in a city or
cities outside the United States.
SECTION 6.09. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Agent and no appointment of a successor Agent
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 6.10.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 11.05 and Section
11.06, 60 days prior to the effective date of such resignation. The Agent may
be removed at any time upon 60 days' notice by the filing with it of an
instrument in writing signed on behalf of the Corporation and specifying such
removal and the date when it is intended to become effective. If the instrument
of acceptance by a successor Agent required by Section 6.10 shall not have been
delivered to the Agent within 30 days after the giving of such notice of
resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) If at any time
(i) the Agent shall cease to be eligible under Section 6.08, or
shall cease to be eligible as Collateral Agent hereunder or Trustee
under the Indenture, and shall fail to resign after written request
therefor by the Corporation or by any Holder, or
(ii) the Agent shall become incapable of acting with respect to
the Units or shall be adjudged a bankrupt or insolvent, or a receiver
or liquidator of the Agent or of its property shall be appointed or
any public officer shall take charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation, by Board Resolution, may remove
the Agent and appoint a successor Agent, or (B) any Holder who has been a bona
fide Holder of a Unit for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Agent and the appointment of a successor Agent or Agents. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Agent and appoint a successor Agent.
(d) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Corporation, by Board Resolution, shall promptly appoint a successor Agent or
Agents (other than the Corporation) and shall comply with the applicable
requirements of Section 6.10. If no successor Agent shall have been so
appointed by the Corporation and accepted appointment in the manner required by
Section 6.10, any Holder who has been a bona fide Holder of a Unit for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Agent.
(e) The Corporation shall give, or shall cause such successor Agent
to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent to all Holders of Units in accordance with
Section 11.06. Each notice shall include the name of the successor Agent and
the address of its Corporate Trust Office.
SECTION 6.10. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Agent, every such successor Agent so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent,
with like effect as if originally named as Agent hereunder; but, on the request
of the Corporation or the successor Agent, such retiring Agent shall, upon
payment of all amounts due and payable to it pursuant to Section 6.07, execute
and deliver an instrument transferring to such successor Agent all the rights
and powers of the retiring Agent and shall duly assign, transfer and deliver to
such successor Agent all property and money held by such retiring Agent
hereunder. Any retiring Agent shall, nonetheless, retain a prior claim upon all
property or funds held or collected by such Agent to secure any amounts then
due it pursuant to Section 6.07.
(b) Upon request of any such successor Agent, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be eligible under this
Article.
(d) Upon acceptance of appointment by any successor Agent as provided
in this Section, the Corporation shall give notice thereof to the Holders of
Units in accordance with Section 11.06. If the acceptance of appointment is
substantially contemporaneous with the resignation of the Agent, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.09. If the Corporation fails to give such notice within
ten days after acceptance of appointment by the successor Agent, the successor
Agent shall cause such notice to be given at the expense of the Corporation.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the agency business of the
Agent, shall be the successor of the Agent hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such corporation shall be otherwise eligible under this
Article. In case any Purchase Contracts shall have been countersigned and
executed, but not delivered, by the Agent then in office, any successor by
merger, conversion or consolidation to such Agent may adopt such
countersignature and execution and deliver the Purchase Contracts so
countersigned and executed with the same effect as if such successor Agent had
itself countersigned and executed such Purchase Contracts.
SECTION 6.12. Appointment of Authenticating Agent. At any time when
any of the Units remain Outstanding the Agent may, by an instrument in writing,
appoint an Authenticating Agent or Agents with respect to the Purchase
Contracts to be authorized to act on behalf of the Agent to countersign,
execute and deliver the Purchase Contracts issued upon exchange, registration
of transfer or pursuant to Section 2.09 and Purchase Contracts so
countersigned, executed and delivered shall be entitled to the benefits of this
Agreement and shall be valid and obligatory for all purposes as if
countersigned by the Agent hereunder. Wherever reference is made in this
Agreement to the countersignature, execution and delivery of Purchase Contracts
by the Agent or the Agent's countersignature or execution, such references
shall be deemed to include countersignature, execution and delivery on behalf
of the Agent by an Authenticating Agent and a countersignature and execution
executed on behalf of the Agent by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Corporation and shall at all times be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, subject to supervision or examination by
Federal or State or District of Columbia authority and having, together with
its parent, a combined capital and surplus of not less than $50,000,000. If
such Authenticating Agent, or its parent, publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such 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. The Agent may also appoint one or more
Authenticating Agents with offices or agencies in a city or cities outside the
United States.
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 all or substantially all the
agency business of an Authenticating Agent, shall continue to be an
Authenticating Agent, without the execution or filing of any paper or any
further act on the part of the Agent or the Authenticating Agent, provided that
such corporation shall be otherwise eligible under this Section.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Agent and to the Corporation. The Agent may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Corporation. 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 Agent may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall provide written
notice of such appointment to all Holders of Units in the manner and to the
extent provided in Section 11.06. 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. No
Authenticating Agent shall have any responsibility or liability for any action
taken by it as such at the direction of the Agent.
The provisions of Sections 2.10, 6.04 and 6.05 shall be applicable to
each Authenticating Agent.
Pursuant to each appointment made under this Section, the Purchase
Contracts covered by such appointment may have endorsed thereon, in addition to
the form of Agent's countersignature and execution of the Purchase Contracts
evidenced thereby, an alternative countersignature and execution of the
Purchase Contracts contained therein in the following forms:
[_______________________], as Agent,
as attorney-in-fact of the Holder
hereof
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:
---------------------------------------
[Authorized Officer]
Title:
Countersigned:
[_______________________], as Agent
By [NAME OF AUTHENTICATING
AGENT], as Authenticating Agent
By:
---------------------------------------
[Authorized Officer]
Title:
SECTION 6.13. Corporation to Furnish Agent Names and Addresses of
Holders. The Corporation will furnish or cause to be furnished to the Agent
(a) not later than 15 days after each Regular Record Date in each
year, a list, in such form as the Agent may reasonably require, of the names
and addresses of the Holders of Registered Units as of such Regular Record
Date, and
(b) at such other times as the Agent may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided that no such list need be furnished if the Agent shall be the Purchase
Contract Registrar and the registrar under the Indenture.
SECTION 6.14. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Units contained
in the most recent list furnished to the Agent as provided in Section 6.13 and
the names and addresses of Holders of Registered Units received by the Agent in
its capacity as Purchase Contract Registrar and the registrar under the
Indenture. The Agent may destroy any list furnished to it as provided in
Section 6.13 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Units and is accompanied by a copy of
the form of proxy or other communication that such applicants propose to
transmit, then the Agent shall, within five Business Days after the receipt of
such application, at its election either (i) afford such applicants access to
the information preserved at the time by the Agent in accordance with Section
6.14(a) or (ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time by
the Agent, and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Agent shall elect not to afford such applicants access to such
information, the Agent shall, upon the written request of such applicants, mail
to each Holder whose name and address appears in the information preserved at
the time by the Agent, a copy of the form of proxy or other communication that
is specified in such application, with reasonable promptness after a tender to
the Agent of the material to be mailed and of payment, or provision for
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Agent shall mail to such applicants a written statement to the
effect that in the opinion of the Agent, such mailing would be contrary to the
best interests of the Holders or would be in violation of applicable law.
Thereafter, the Agent shall be relieved of any obligation or duty to such
applicants with respect to their application.
(c) Every Holder of Units, by his acceptance thereof, agrees with the
Corporation and the Agent that neither the Corporation nor the Agent nor any
agent of any of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 6.14(b), regardless of the source from which such information was
derived, and that the Agent shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.14(b).
SECTION 6.15. No Obligation of Holder. Except to the extent otherwise
provided in this Agreement, the Agent assumes no obligations and shall not be
subject to any liability under this Agreement or any Purchase Contract with
respect to the obligations of the Holder of a Unit thereunder. The Corporation
agrees, and each Holder of a Unit Certificate, by his acceptance thereof, shall
be deemed to have agreed, that the Agent's execution of the Purchase Contracts
evidenced by the Unit Certificates shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation
to perform such Purchase Contracts on behalf of the Holders, except to the
extent provided in this Article.
SECTION 6.16. Tax Compliance. (a) The Agent, on its own behalf and
on behalf of the Corporation, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable United States, federal and New York State
tax laws, regulations or administrative practice (i) with respect to payments
on, or transfer or redemption of the Debt Securities, the Prepaid Purchase
Contracts or the Purchase Contracts or (ii) if specifically instructed by the
Company, with respect to the issuance, delivery, holding, or exercise of rights
(other than by payment, transfer or redemption) under the Debt Securities, the
Prepaid Purchase Contracts or the Purchase Contracts. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns with respect to, and the timely payment of, all amounts required to be
withheld to the appropriate taxing authority or its designated agent. The
Corporation will provide to the Agent such information as it may reasonably
request in order to comply with this Section.
(b) The Agent shall comply with any direction received from the
Corporation with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 6.01(b)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request at reasonable times during normal business hours to the Corporation or
to their authorized representatives duly authorized in writing.
(d) Unless otherwise specified pursuant to Section 2.03, the portion
of the issue price of any Units of any series consisting of Debt Securities and
Purchase Contracts allocable to such Debt Securities shall equal the principal
amount payable at maturity of such Debt Securities. The Corporation and the
Holders agree not to file any tax returns, or take a position with any tax
authority, that is inconsistent with the characterization of the Debt
Securities as debt.
(e) Unless otherwise specified pursuant to Section 2.03, the
Corporation by the issuance and sale of any Unit and any Holder of a Unit by
his acceptance thereof agree to (in the absence of any applicable
administrative ruling or judicial determination to the contrary) treat the
Securities that constitute any Unit as separate securities and to file all
United States federal, state and local tax returns consistent with the
treatment of such Unit as constituted by separate securities.
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Corporation, when authorized by a Board
Resolution or Officer's Certificate, the Agent and the Collateral Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Agent, for any of the following purposes:
(i) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the covenants
of the Corporation herein and in the Purchase Contracts; or
(ii) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent with respect to the
Units; or
(iii) to add to the covenants of the Corporation, Collateral
Agent or Agent such further covenants, restrictions, conditions or
provisions as the Corporation, Collateral Agent and Agent shall
consider to be for the protection of the Holders, and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions of
the Corporation a Purchase Contract Default permitting the enforcement
of all or any of the several remedies provided in this Agreement as
herein set forth; provided that in respect of any such additional
covenant, restriction, condition or provision such supplemental
agreement may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement upon
such a Purchase Contract Default or may limit the remedies available
to the Holders upon such a Purchase Contract Default or may limit the
right of the Holders to waive such Purchase Default; or
(iv) to comply with the Securities Act of 1933, as amended, the
Exchange Act or the Investment Company Act of 1940, as amended; or
(v) to cure any ambiguity, to correct or supplement any provision
herein or in the Purchase Contracts of any series that may be
inconsistent with any other provision herein or therein, or to modify,
alter, amend or supplement any other provisions with respect to
matters or questions arising under this Agreement or under such
Purchase Contracts; provided that such action shall not adversely
affect the interests of the Holders in any material respect.
SECTION 7.02. Supplemental Agreements with Consent of Holders. With
the consent of the Holders of not less than a majority of all Unsettled
Purchase Contracts constituting a part of any series of Units Outstanding, in
the case of clause (A) below, and with the consent of the Holders of not less
than a majority of all Units Outstanding, in the case of clause (B) below, by
Act of said Holders delivered to the Corporation and the Agent, the
Corporation, when authorized by a Board Resolution or Officer's Certificate,
the Agent and the Collateral Agent may enter into an agreement or agreements
supplemental hereto for the purpose of (A) modifying in any manner the terms of
the Purchase Contracts or this Agreement with respect to the Purchase Contracts
or the rights of the Holders of Units with respect to the Purchase Contracts or
(B) modifying in any manner the other terms of this Agreement or the other
rights of Holders of Units; provided, however, that no such supplemental
agreement shall (i) without the consent of the Holder of each Outstanding
Purchase Contract affected thereby in the case of clauses (1), (2) and (3)
below and (ii) without the consent of the Holder of each Unit affected thereby,
in the case of clauses (4) and (5) below:
(1) impair the right to institute suit for the enforcement of any
Purchase Contract, or
(2) reduce the percentage of the Purchase Contracts constituting
a part of any series of Units Outstanding, the consent of whose
Holders is required for any modification or amendment of the
provisions of this Agreement relating to the Purchase Contracts or for
any waiver of any Purchase Contract Defaults hereunder and their
consequences provided for in this Agreement relating to the Purchase
Contracts, or
(3) modify or affect (in any manner materially adverse to the
Holders) the Holders' rights and obligations under the Purchase
Contracts; or
(4) modify or affect (in any manner materially adverse to the
Holders) the terms of this Agreement or such Holder's Units (other
than the terms referred to in clause (1), (2) or (3) above); or
(5) reduce the percentage of Holders of Units whose consent is
required for any modification or amendment of the provisions of this
Agreement (other than the terms referred to in clause (1), (2) or (3)
above).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 7.03. Execution of Supplemental Agreements. In exchange for
accepting the additional agencies or duties created by, any supplemental
agreement permitted by this Article or the modifications thereby of the
agencies or duties created by this Agreement, each of the Agent and the
Collateral Agent shall be entitled to receive and (subject to Sections 6.01 and
5.03, respectively) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental agreement is authorized
or permitted by this Agreement. Each of the Agent and the Collateral Agent may,
but shall not be obligated to, enter into any such supplemental agreement that
affects the Agent's or the Collateral Agent's rights, duties or immunities
under this Agreement or otherwise.
SECTION 7.04. Effect of Supplemental Agreements. Upon the execution of
any supplemental agreement under this Article, this Agreement shall be modified
in accordance therewith, and such supplemental agreement shall form a part of
this Agreement for all purposes; and every Holder of Units, theretofore or
thereafter authenticated, countersigned, executed and delivered hereunder
and/or under the Indenture shall be bound thereby.
SECTION 7.05. Reference to Supplemental Agreements. Unit Certificates,
Debt Securities, Purchase Contracts and Prepaid Purchase Contracts
authenticated, countersigned, executed and delivered after the execution of any
supplemental agreement pursuant to this Article may, and shall if required by
the Agent, bear a notation in form approved by the Agent as to any matter
provided for in such supplemental agreement. If the Corporation shall so
determine, new Unit Certificates, Debt Securities, Purchase Contracts and
Prepaid Purchase Contracts so modified as to conform, in the opinion of the
Agent, and the Corporation, to any such supplemental agreement may be prepared
and executed by the Corporation and authenticated, executed, countersigned and
delivered by the Trustee and the Agent, as applicable, in exchange for
Outstanding Unit Certificates, Debt Securities, Purchase Contracts and Prepaid
Purchase Contracts.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Corporation covenants that it
will not merge or consolidate with any other corporation or sell, convey or
lease all or substantially all of its assets to any Person, firm or
corporation, except that the Corporation may merge or consolidate with, or
sell, convey or lease all or substantially all of its assets to, any other
corporation, provided that (i) the Corporation shall be the continuing
corporation, or the successor corporation (if other than the Corporation) shall
be a corporation organized and existing under the laws of the United States of
America or a state thereof or the District of Columbia and such corporation
shall assume the due and punctual performance and observance of all of the
covenants and conditions of this Agreement to be performed by the Corporation
by supplemental agreement in form satisfactory to the Agent and the Collateral
Agent, executed and delivered to the Agent and the Collateral Agent by such
corporation, and (ii) neither the Corporation nor such successor corporation
immediately after such merger or consolidation, or such sale, conveyance or
lease shall be in default in the performance of any such covenant or condition.
SECTION 8.02. Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale or conveyance and upon any such assumption
by the successor corporation, such successor corporation shall succeed to and
be substituted for the Corporation with the same effect as if it had been named
herein as the Corporation. Such successor corporation thereupon may cause to be
signed, and may issue (subject to the provisions of the Indenture) either in
its own name or in the name of Comcast Cable Communications, Inc. any or all of
the Unit Certificates, Debt Securities, Prepaid Purchase Contracts and Purchase
Contracts issuable hereunder which theretofore shall not have been signed by
the Corporation and delivered to the Agent; and, upon the order of such
successor corporation, instead of the Corporation, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Trustee and
the Agent shall authenticate, countersign, execute and deliver, as applicable,
any Unit Certificates, Debt Securities, Prepaid Purchase Contracts and Purchase
Contracts that previously shall have been signed and delivered by the officers
of the Corporation to the Trustee and the Agent for authentication, execution
and countersignature, and any Unit Certificate, Debt Securities, Prepaid
Purchase Contracts and Purchase Contracts evidencing Units which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
and the Agent for such purpose. All the Purchase Contracts so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Purchase Contracts theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Purchase Contracts had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease
such change in phraseology and form (but not in substance) may be made in the
Unit Certificates and Purchase Contracts thereafter to be issued as may be
appropriate.
SECTION 8.03. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 6.01 and 6.03 and Sections 5.03 and 5.05,
respectively, may receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance or lease, and any such assumption,
complies with the provisions of this Article.
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts. The Corporation
covenants and agrees for the benefit of the Holders of the Units that it will
duly and punctually perform its obligations under the Purchase Contracts in
accordance with the terms of the Purchase Contracts and this Agreement.
SECTION 9.02. Maintenance of Office or Agency. So long as Units or
Purchase Contracts are authorized for issuance pursuant to this Agreement or
are Outstanding hereunder, the Corporation will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Registered Units may
be presented or surrendered for payment or acquisition of Purchase Contract
Property or where Purchase Contract Property or other property may be tendered
for delivery, where Registered Units may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Corporation
in respect of Units and this Agreement may be served. The Corporation hereby
initially designates the Agent as its office or agency in the Borough of
Manhattan, The City of New York, for each of said purposes. The Corporation
will give prompt written notice to the Agent of the location, and any change in
the location, of such office or agency. The Corporation will maintain one or
more offices or agencies in a city or cities located outside the United States
(including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Units of such series, or the
Securities constituting such Units, are listed) where the Unregistered Units,
if any, of each series may be presented or surrendered for payment or
acquisition of Purchase Contract Property or where Purchase Contract Property
or other property may be tendered for delivery. No payment or delivery of
Purchase Contract Property on any Unregistered Unit will be made upon
presentation of such Unregistered Unit at an agency of the Corporation within
the United States nor will any payment or delivery of Purchase Contract
Property be made by transfer to an account in, or by mail to an address in, the
United States unless pursuant to applicable United States laws and regulations
then in effect such payment can be made without adverse tax consequences to the
Corporation. Notwithstanding the foregoing, payments in U.S. dollars of
Unregistered Units of any series appertaining thereto which are payable in
Dollars may be made at an agency of the Corporation maintained in the Borough
of Manhattan, The City of New York if such payment in Dollars at each agency
maintained by the Corporation outside the United States for payment on such
Unregistered Units is illegal or effectively precluded by exchange controls or
other similar restrictions. If at any time the Corporation shall fail to
maintain any such required office or agency or shall fail to furnish the Agent
with the name and address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Agent, and
the Corporation hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other
offices or agencies where Debt Securities, Prepaid Purchase Contracts, Purchase
Contracts and Unit Certificates 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
Corporation of its obligations to maintain offices or agencies provided for in
this Section. The Corporation will give prompt written notice to the Agent of
any such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 9.03. Money for Payments to Be Held in Trust. Any money or
other property deposited with the Agent, in trust for payment with respect to
any Unit, remaining unclaimed for two years after such payment has become due
and payable shall be paid to the Corporation on request of the Corporation
pursuant to an Officer's Certificate; and the Holder of such Unit shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Agent with respect to such trust
money or other property shall thereupon cease.
In the event that (i) the Corporation has delivered the Settlement
Amount to the Agent and (ii) a Holder of a Unit Certificate fails to present
and surrender the appropriate Unit Certificate to the Agent such Settlement
Amount (and, if an effective Cash Settlement with respect to the obligations
under such Purchase Contracts has been made, payments in respect of principal
of any Debt Securities that are part of such Units), shall be held by the
Agent, in trust, for the benefit of such Holder, until such Unit Certificate is
presented and surrendered or such Holder delivers to the Agent, the Trustee,
and the Corporation (A) evidence to their satisfaction that such certificate
has been destroyed, lost or stolen and (B) such security or indemnity as may be
required by them to hold each of them and any agent of any of them harmless. In
the event such Unit Certificate is not presented and surrendered or such Holder
does not satisfy the applicable conditions specified in the preceding sentence
on or prior to the date two years after the date of settlement of the related
Purchase Contract, as the case may be, any distributions received by the Agent
with respect to the Purchase Contract Property delivered in respect of the Unit
Certificates shall be paid to the Corporation, on the request of the
Corporation pursuant to an Officer's Certificate, and the Holders of such Unit
shall thereafter, as unsecured general creditors, look only to the Corporation
for payment thereof and all liability of the Agent with respect to such trust
assets shall thereafter cease.
SECTION 9.04. Statements of Officers of the Corporation as to Default.
The Corporation will deliver to the Agent, on or before March 31 in each year,
an Officer's Certificate stating whether or not to the best knowledge of the
signers thereof the Corporation is in default in the performance and observance
of any of the terms, provisions and conditions hereof or of any Purchase
Contracts, and, if the Corporation shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 9.05. Negative Pledge. Neither the Corporation nor any
successor corporation will, or will permit any Subsidiary (as hereinafter
defined) to, create, assume, incur or guarantee any indebtedness for borrowed
money secured by a pledge, lien or other encumbrance (except for Permitted
Liens, as hereinafter defined) on the Voting Securities (as hereinafter
defined) of [TO COME] or any Subsidiary succeeding to any substantial part of
the business now conducted by any of such corporations (collectively, the
"Principal Subsidiaries") or (ii) Voting Securities of a Subsidiary that owns,
directly or indirectly, Voting Securities of any of the Principal Subsidiaries
(other than directors' qualifying shares) unless the Corporation shall cause
the Units and the Securities constituting the Units to be secured equally and
ratably with (or, at the Corporation's option, prior to) any indebtedness
secured thereby. "Subsidiary" means any corporation, partnership or other
entity of which at the time of determination the Corporation owns or controls
directly or indirectly more than 50% of the shares of voting stock or
equivalent interest. "Permitted Liens" means liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involves claims of less than $1,000,000, deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds and such other liens as the Board of
Directors of the Corporation determines do not materially detract from or
interfere with the present value or control of the Voting Securities subject
thereto or affected thereby. "Voting Securities" means stock of any class or
classes having general voting power under ordinary circumstances to elect a
majority of the board of directors, managers or trustees of the Subsidiary in
question, provided that, for the purposes hereof, stock which carries only the
right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
SECTION 9.06. Luxembourg Publications. In the event of the publication
of any notice pursuant to this Agreement, the party making such publication in
the Borough of Manhattan, The City of New York, and London shall also, to the
extent that notice is required to be given to Holders of Units of any series or
Securities constituting such Units by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts; Redemption
Upon Redemption of Debt Securities. If this Article is specified as applicable
pursuant to Section 3.02 in connection with the issuance of the Purchase
Contracts of a series, any or all of such Purchase Contracts may be redeemed at
the option of the Corporation, or from time to time in part, on such date or
dates and at a redemption price per Purchase Contract as shall be specified
pursuant to Section 3.02; provided that no redemption shall result in there
being more than zero but fewer than the minimum amount of Unsettled Purchase
Contracts that may remain Outstanding after such redemption, as specified
pursuant to Section 3.02.
Unless otherwise specified pursuant to Section 2.03, in the event that
the Corporation shall redeem any Debt Security constituting part of a Unit of
any series pursuant to the provisions of the Indenture or such Debt Security,
the Corporation shall redeem any Purchase Contract constituting part of the
same Unit on the redemption date of such related Debt Security.
SECTION 10.02. Notice of Redemption; Partial Redemptions. Unless
otherwise specified pursuant to Section 3.02, the Corporation or, upon Issuer
Order of the Corporation, the Agent in the name and at the expense of the
Corporation, shall give notice of redemption to the Holders of Purchase
Contracts in the manner and to the extent provided in Section 11.06, at least
30 days and not more than 60 days prior to the date fixed for redemption. Any
notice which is given in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Purchase Contract, shall not affect the validity of the
proceedings for the redemption of any other Purchase Contract.
The notice of redemption to each Holder of Registered Purchase
Contracts shall specify the number of Registered Purchase Contracts held by
such Holder to be redeemed, the date fixed for redemption, the redemption
price, the place or places of payment and that payment will be made upon
presentation and surrender of Unit Certificates with respect to such Registered
Purchase Contracts evidenced by Unit Certificates.
The Corporation's obligation to provide funds for redemption shall be
deemed fulfilled if, on or before 12:00 noon, local time in the place of
payment, on the redemption date specified in the notice of redemption given as
provided in this Section, the Corporation shall deposit with the Agent or with
one or more paying agents an amount of money sufficient to redeem on the
redemption date all the Purchase Contracts called for redemption at the
appropriate redemption price, together with irrevocable instructions and
authorization that such funds be applied to the redemption of the Purchase
Contracts called for redemption upon surrender of Unit Certificates
representing such Purchase Contracts, properly endorsed and assigned for
transfer, in accordance with this Article.
The Corporation will deliver to the Agent at least 15 days prior to
the mailing of the notice of redemption an Officer's Certificate stating the
aggregate number of Purchase Contracts to be redeemed on such date and that the
Corporation has complied with the provisions of Section 10.01 and of said
Purchase Contracts subject to said redemption.
If fewer than all the Purchase Contracts are to be redeemed, the
Agent, prior to the mailing of the redemption notice, shall select the Purchase
Contracts to be redeemed on a pro rata basis, by lot or by such other means as
shall be acceptable to the Agent. Appropriate adjustment shall be made to
prevent the fractional redemption of Purchase Contracts, such that Purchase
Contracts are redeemed only in whole and not in part.
The Agent shall promptly notify the Corporation in writing of the
Purchase Contracts so selected for redemption.
SECTION 10.03. Payment of Purchase Contracts Called for Redemption. If
notice of redemption has been given as above provided, (i) the Purchase
Contracts specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, and (ii)
on and after the date fixed for redemption (unless the Corporation shall
default in the payment of such Purchase Contracts at the redemption price) such
Purchase Contracts shall cease from and after the date fixed for redemption to
be entitled to any benefit under this Agreement, the Holders thereof shall have
no right or obligation in respect of such Purchase Contracts except the right
to receive the redemption price thereof and the Purchase Contracts shall
terminate and shall no longer be deemed to be Outstanding.
If so specified pursuant to Section 3.02, on presentation and
surrender of Unit Certificates representing such Purchase Contracts, properly
endorsed and assigned for transfer, at a place of payment specified in said
notice, said Purchase Contracts shall be paid and redeemed by the Corporation
at the applicable redemption price. Following such redemption, the Unit
Certificates evidencing such Closed Purchase Contracts shall be cancelled in
accordance with Section 2.11. In the case of (i) Definitive Units, certificates
evidencing any Outstanding Debt Securities relating to such redeemed Purchase
Contracts shall be executed, authenticated and delivered in accordance with the
terms of the Indenture and (ii) Global Units, if a Global Debt Security not
constituting part of a Global Unit has not previously been issued by the
Corporation, a second Global Debenture evidencing any Outstanding Debt Security
relating to such redeemed Purchase Contracts shall be executed, authenticated
and delivered in accordance with the Indenture. If a second Global Debt
Security referred to in clause (ii) of the immediately preceding sentence has
already been issued, the Agent shall note thereon an appropriate increase in
the number of Debt Securities represented by such Global Debt Security.
Any interest accrued on funds deposited with the Agent or any Paying
Agent in connection with this Article Ten shall be paid to the Corporation from
time to time and the Holders of Purchase Contracts (whether or not such
Purchase Contracts are to be redeemed with such funds) shall have no claim to
any such interest. Any funds deposited and unclaimed at the end of two years
from any redemption date shall be repaid or released to the Corporation, on the
request of the Corporation pursuant to an Officer's Certificate, after which
the Holder(s) of Purchase Contracts so called for redemption shall look only to
the Corporation for payment of the redemption price, without any interest
thereon and all liability of the Agent with respect to the redemption price
shall cease.
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption. Purchase Contracts shall be excluded
from eligibility for selection for a partial redemption if they are identified
by registration and certificate number in an Officer's Certificate delivered by
the Corporation to the Agent at least 10 days prior to the date of the mailing
of a notice of redemption as being owned of record and beneficially by, and not
pledged or hypothecated by (a) the Corporation or (b) an Affiliate of the
Corporation. Purchase Contracts shall also be excluded from eligibility for
selection for a partial redemption if they are the subject of an Acceleration
Notice.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
the Corporation Immune from Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Agreement, or in any Debt
Security, Prepaid Purchase Contract or any Purchase Contract, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future stockholder, officer, attorney-in-fact or
director, as such, of the Corporation or of any successor corporation, either
directly or through the Corporation or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or penalty or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the
Units by the Holders thereof and as part of the consideration for the issue
thereof, provided that nothing in this Article shall impair the obligations,
covenants and agreements of the Corporation contained in this Agreement and in
any Debt Securities, Prepaid Purchase Contracts or Purchase Contracts
constituting a part of the Units of any series.
SECTION 11.02. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or request
by the Corporation to the Agent or Collateral Agent to take any action under
any provision of this Agreement, the Corporation, as applicable, shall furnish
to the Agent or Collateral Agent an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has reached such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 11.03. Form of Documents Delivered to Agent or Collateral
Agent. 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, statement or opinion of an officer or counsel of or
for the Corporation 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, statement or opinion is based are erroneous. Any such
certificate, statement or opinion may be based, insofar as it relates to
factual matters, upon a certificate, statement or opinion of, or
representations by, an officer or officers of the Corporation, as applicable,
stating that the information with respect to such factual matters is in the
possession of the Corporation, 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 Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 11.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Agent and, where it is
hereby expressly required, to the Corporation. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 6.01) conclusive in favor of the Agent and the Corporation, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Agent deems
sufficient.
(c) Subject to Section 2.03(a)(vi), the ownership (i) of Registered
Units of any series shall be proved by the Purchase Contract Register for such
series, with respect to any Purchase Contracts constituting a part of such
Units and the Debt Security Register for such series, with respect to any Debt
Securities or Prepaid Purchase Contracts constituting a part of such Units, and
(ii) of Unregistered Units shall be proved by possession of the Unit
Certificates evidencing such Units or by the appropriate records of the
depositary for such Units.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit Certificate shall bind every
future Holder of the same Unit Certificate and the Holder of every Unit
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof with respect to anything done, omitted or suffered
to be done by the Agent or the Corporation in reliance thereon, whether or not
notation of such action is made upon such Unit Certificate.
(e) The Corporation may set a record date for purposes of determining
the identity of Holders of Units entitled to consent to any action by consent
authorized or permitted hereby. Unless otherwise specified pursuant to Section
2.03, such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
Units furnished to the Agent, pursuant hereto.
SECTION 11.05. Notices, Etc.. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Agreement to be made upon, given or furnished to, or filed
with,
(a) the Agent or the Collateral Agent, as the case may be, by any
Holder or by the Corporation shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered or mailed, first-class postage prepaid, to
the Agent at its Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or at any other address previously furnished in
writing by the Agent or the Collateral Agent, as the case may be, to the
Holders and the Corporation, or
(b) the Corporation by the Agent, the Collateral Agent or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, addressed to the
Corporation at 1105 North Market Street, Wilmington, Delaware, 19801,
Attention: Treasurer, or at any other address previously furnished in writing
to the Agent and the Collateral Agent by the Corporation.
SECTION 11.06. Notices to Holders; Waiver. Where this Agreement
provides for notice to Holders of Registered Securities or Registered Units of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided or as provided in the Letter of Representations) if in
writing and mailed, first-class postage prepaid, to each such Holder affected
by such event, at such Holder's address as it appears in the relevant Security
Registers, with respect to the Securities constituting such Unit, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Agent, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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 by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Where this Agreement provides for notice to Holders of Unregistered
Securities or Unregistered Units of any event, such notice shall be
sufficiently given (unless otherwise specified herein or pursuant to Section
2.03 or 3.02) by publication in a newspaper in the English language of general
circulation in the Borough of Manhattan, The City of New York, and in The City
of London or, if publication in London is not practical, in an English language
newspaper with general circulation in Western Europe. Such notices will be
deemed to have been given on the date of such publication, or if published in
such newspapers on different dates, on the date of the first such publication.
SECTION 11.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.08. Successors and Assigns. All covenants and agreements in
this Agreement, the Units, the Purchase Contracts and the Unit Certificates by
the Corporation shall bind its successors and assigns, whether so expressed or
not.
SECTION 11.09. Separability Clause. In case any provision in this
Agreement or in the Units, Unit Certificates or the Purchase Contracts shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 11.10. Benefits of Agreement. Nothing in this Agreement or in
the Units, Unit Certificates, the Indenture, the Debt Securities, the Prepaid
Purchase Contracts or the Purchase Contracts, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be parties to this Agreement and shall be
bound by all of the terms and conditions hereof and of the Indenture, the
Units, the Debt Securities, the Prepaid Purchase Contracts and the Purchase
Contracts evidenced by the Units, by their acceptance of delivery of such
Units.
SECTION 11.11. Governing Law. This Agreement, the Units and the
Purchase Contracts shall be governed and construed in accordance with the laws
of the State of New York.
SECTION 11.12. Legal Holidays. Unless otherwise specified pursuant
to Section 3.02, in any case where any Settlement Date shall not be a Business
Day, then (notwithstanding any other provisions of this Agreement or the
Purchase Contracts) the Purchase Contracts shall not be performed on such date,
but shall be performed on the next succeeding Business Day with the same force
and effect as if performed on such Settlement Date; provided that no interest
or other amounts shall accrue or be payable by the Corporation or any Holder
for the period from and after any such Settlement Date.
SECTION 11.13. Counterparts. This Agreement may be executed in any
number of counterparts by the parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 11.14. Appointment of Certain Agents. (a) Pursuant to Section
2.03 hereof, the Corporation may, in connection with any series of Purchase
Contracts appoint [_________] or any other Person as Calculation Agent to make
any calculations as may be required pursuant to the terms of any such series of
Purchase Contracts. Any such Calculation Agent shall act as an independent
expert and, unless otherwise provided by this Agreement, its calculations and
determinations under this Agreement shall, absent manifest error, be final and
binding on the Corporation, the Agent and the Holders. Any such calculations
will be made available to the Holders for inspection at the Agent's Office.
(b) Unless otherwise specified pursuant to Section 2.03, the
Corporation hereby appoints [________] as the Paying Agent under the Indenture
with respect to each Debt Security comprised by any Unit issued hereunder.
SECTION 11.15. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Agent for inspection by any Holder.
IN WITNESS WHEREOF, the Corporation, the Agent, the Collateral Agent
and the Trustee have duly executed this Agreement as of the day and year first
above set forth, and all Holders of Units shall become parties hereto by and
upon acceptance by them of delivery of Units issued in accordance with the
terms hereof.
COMCAST CABLE COMMUNICATIONS,
INC.
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Agent
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Collateral Agent
By:
--------------------------------------
Name:
Title:
[------------------------------],
as Trustee and Paying Agent under the
Indenture
By:
--------------------------------------
Name:
Title:
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL REGISTERED UNIT
CERTIFICATE, INSERT--This Unit Certificate is a global Unit Certificate within
the meaning of the Unit Agreement hereinafter referred to and is registered in
the name of the Depository Trust Company (the "Depositary") or a nominee of the
Depositary. Unless and until it is exchanged in whole or in part for Units in
definitive registered form, this Unit Certificate may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary).
Unless this Unit Certificate is presented by an authorized
representative of The Depositary (55 Water Street, New York) to Comcast Cable
Communications, Inc. or its agent for registration of transfer, exchange or
payment, and any Unit issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of the Depositary and
any payment hereon is made to Cede & Co. or such other entity as is requested
by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
UNIT CERTIFICATE
(issuable in integral multiples of whole Units)
Evidencing the Ownership of, or Rights and Obligations
of the Holder Under, the Securities
Specified Below
[Specify Securities Constituting Part of these Units]
Certificate No. _____Number of Units [Up To][1]
This Unit Certificate certifies that ______________________ (the
"Holder"), or [registered assigns][2], is the [registered]2 owner of [ ( )
Units][3] [the number of Units specified in Schedule A hereto.]1
Each Unit represents ownership by the Holder of [specify Securities
constituting parts of the Unit] [, subject to the pledge of such Debt
Securities by such Holder pursuant to the Unit Agreement (the "Unit Agreement")
dated as of March 12, 1998 among the Corporation, [__________], as Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein and the Holders from time to time of the Units described therein.
Pursuant to the Unit Agreement, the Debt Securities constituting part of the
Units evidenced hereby have been pledged to the Collateral Agent to secure the
obligations of the Holder under the Purchase Contract constituting part of such
Units.][4]
[For so long as the [Purchase Contract] underlying each Unit
represented hereby remains in effect such Unit shall not be separable into its
constituent parts and the rights and obligations of the Holder of such Unit in
respect of such constituent parts may be transferred and exchanged only as a
Unit.][5]
- --------
1 Insert in Global Unit Certificates
2 Insert in Registered Units
3 Insert in Definitive Unit Certificates
4 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts
5 Insert in non-separable Units.
[Designated Security Register:][6]
[Other Terms of Units:]
[INSERT APPROPRIATE DEBT SECURITY CERTIFICATE]
- -----------------------------------------------------------------------------
Reference is hereby made to the further provisions of this certificate set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
- -----------------------------------------------------------------------------
- --------
6 Insert in non-separable Registered Units.
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY
COMCAST CABLE COMMUNICATIONS, INC.]
COMCAST CABLE COMMUNICATIONS, INC.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Comcast Cable Communications, Inc.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in
the Unit Agreement (described below) have the meanings set forth therein, and
if not defined therein, have the meaning set forth below.
==========================================================
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement: Cash
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
==========================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
purchase and Comcast Cable Communications, Inc., a corporation duly
incorporated and existing under the laws of the State of Delaware (the
"Corporation"), agrees to sell, subject to the terms of the Unit Agreement
referred to below and as set forth herein, on the Settlement Date, the Quantity
of Purchase Contract Property, for the Purchase Price. The Purchase Contract(s)
evidenced hereby shall not entitle the Holder to purchase the Purchase Contract
Property prior to the Settlement Date.
The Purchase Price for the Purchase Contract Property purchased
pursuant to the Purchase Contracts evidenced hereby shall be payable at the
Payment Location on the Settlement Date pursuant to the Cash Settlement in the
Currency of Settlement Payment.
Each Purchase Contract evidenced hereby is one of a duly authorized
issue of not more than the Authorized Number of Purchase Contracts of the
Corporation relating to the purchase by Holders of not more than the Aggregate
Quantity of Purchase Contract Property issued under the Unit Agreement, dated
as of [____], 1998 (the "Unit Agreement"), among the Corporation,[_______], as
Agent (the "Agent") and as Collateral Agent thereunder, as Trustee (the
"Trustee") and Paying Agent under the Indenture referred to therein, and the
holders from time to time of Units, to which Unit Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Collateral Agent, the Corporation and the Holders and of the
terms upon which the Purchase Contracts are, and are to be, executed,
countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any transfer
or exchange of each Purchase Contract evidenced hereby. No service charge shall
be required for any such registration of transfer or exchange, but the
Corporation and the Agent may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection with any registration of
transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase Contracts and
the provisions of the Unit Agreement may be amended with the consent of the
affected Holders of not less than a majority of the Purchase Contracts
evidenced by all Outstanding Units and certain Purchase Contract Defaults may
be waived with the consent of the Holders of a majority of the Purchase
Contracts evidenced by all Outstanding Units. Without the consent of any Holder
of Units, the terms of the Unit Agreement the Purchase Contracts may be amended
to, among other things, cure any ambiguity, to correct or supplement any
provision in the Unit Agreement or Purchase Contract to add to covenants of the
Corporation, Collateral Agent or Agent or to make any other provisions with
respect to matters or questions arising under the Unit Agreement or the
Purchase Contracts that do not adversely affect the interests of the Holders in
any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement
or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Purchase Contracts
or the Unit Agreement or for any claim based on, with respect to or by reason
of such obligations or their creation. The Holder by his acceptance hereof
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract
for registration of transfer, the Corporation, the Trustee, the Agent and the
Collateral Agent, and any agent of the Corporation, the Trustee, the Agent and
the Collateral Agent may treat the Person in whose name this Purchase Contract
is registered as a party to the Purchase Contracts evidenced hereby for the
purpose of performance of such Purchase Contracts and for all other purposes
whatsoever, and neither the Corporation, the Trustee, the Agent and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute
the Purchase Contracts evidenced hereby on his behalf, authorizes and directs
the Agent on his behalf to take such other action, and covenants and agrees to
take such other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Debt Securities constituting part of the Unit of which this Purchase
Contract forms a part to the Collateral Agent on the Holder's behalf,][7]
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
- --------
7 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
The Purchase Contracts shall not, prior to the performance thereof,
entitle the Holder to any of the rights of a holder of the Purchase Contract
Property.
No Purchase Contract evidenced hereby shall be valid or obligatory for
any purpose until countersigned and executed on behalf of the Holder by the
Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Comcast Cable Communications, Inc. has
caused this instrument to be duly executed.
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
[---------------],
as Agent, and as attorney-in-fact of the
Holder hereof
By:
------------------------------------
Authorized Officer
Countersigned:
[---------------],
as Agent
By:
------------------------------------
Authorized Officer
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY
COMCAST CABLE COMMUNICATIONS, INC.]
COMCAST CABLE COMMUNICATIONS, INC.
PURCHASE CONTRACT(S)
Purchase Contracts between
Comcast Cable Communications, Inc.
and
----------------
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in the Unit
Agreement (described below) have the meanings set forth therein, and if not
defined therein, have the meaning set forth below.
==========================================================
Purchase Contract Property:
Quantity:
Purchase Price:
Settlement Date:
Payment Location:
Method of Settlement: Cash
Method of Computing Settlement
Amount:
Currency of Settlement Payment:
Authorized Number of Purchase
Contracts:
Aggregate Purchase Price:
Contract Fees:
Corporation Acceleration:
Holders' Acceleration:
Redemption Provisions:
Other Terms:
==========================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
sell and Comcast Cable Communications, Inc., a corporation duly incorporated
and existing under the laws of the State of Delaware (the "Corporation"),
agrees to purchase, subject to the terms of the Unit Agreement referred to
below and as set forth herein, on the Settlement Date, the Quantity of Purchase
Contract Property, for the Purchase Price. The Purchase Contract(s) evidenced
hereby shall not entitle the Corporation to purchase the Purchase Contract
Property, or the Holder to receive the Purchase Price, prior to the Settlement
Date.
As indicated under Method of Settlement above, the parties'
obligations under the Purchase Contracts evidenced hereby are to be settled by
payment of the Settlement Amount by the Corporation or the Holder, as the case
may be. The Settlement Amount payable pursuant to the Purchase Contracts
evidenced hereby, as determined in accordance with the Method of Computing
Settlement Amount, shall be payable on the Settlement Date in the Currency of
Settlement Payment at the Payment Location; provided that any Settlement Amount
payable by Holders pursuant to the Purchase Contracts evidenced hereby may be
deducted from the principal payment that may be payable by the Corporation with
respect to any Debt Securities comprised by the Units of which such Purchase
Contacts are a part.
Each Purchase Contract evidenced hereby is one of a duly authorized
issue of not more than the Authorized Number of Purchase Contracts of the
Corporation issued under the Unit Agreement, dated as of [_____], 1998 (the
"Unit Agreement"), among the Corporation, [_________], as Agent (the "Agent")
and as Collateral Agent thereunder, as Trustee (the "Trustee") and Paying Agent
under the Indenture referred to therein, and the holders from time to time of
Units, to which Unit Agreement and supplemental agreements thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Corporation and
the Holders and of the terms upon which the Purchase Contracts are, and are to
be, executed, countersigned, executed on behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents in connection with any transfer
or exchange of each Purchase Contract evidenced hereby. No service charge shall
be required for any such registration of transfer or exchange, but the
Corporation and the Agent may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection with any registration of
transfer or exchange of Units.
Upon registration of transfer of this Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Unit Agreement), under the terms of the Unit Agreement and the Purchase
Contracts evidenced hereby and the transferor shall be released from the
obligations under the Purchase Contracts hereby. The Corporation covenants and
agrees, and the Holder, by his acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any cash or other
property (other than the Purchase Contract Property) is payable or deliverable
with respect to the Purchase Contracts evidenced hereby is described above
under "Contract Fees". The extent to which, and the terms upon which, the
Corporation may accelerate the obligations of the Corporation and the Holders
of the Purchase Contracts evidenced hereby is described above under
"Corporation Acceleration". The extent to which, and the terms upon which, the
Holders of such Purchase Contracts may accelerate the obligations of the
Corporation and the Holders of the Purchase Contracts is described above under
"Holders' Acceleration". The extent to which, and the terms upon which, the
Corporation may redeem the Purchase Contracts evidenced hereby is described
above under "Redemption Provisions".
Subject to certain exceptions, the terms of the Purchase Contracts and
the provisions of the Unit Agreement may be amended with the consent of the
affected Holders of not less than a majority of the Purchase Contracts
evidenced by all Outstanding Units and certain Purchase Contract Defaults may
be waived with the consent of the Holders of a majority of the Purchase
Contracts evidenced by all Outstanding Units. Without the consent of any Holder
of Units, the terms of the Unit Agreement or the Purchase Contracts may be
amended to, among other things, cure any ambiguity, to correct or supplement
any provision in the Unit Agreement or Purchase Contract, to add to the
covenants of the Corporation, Collateral Agent or Agent for the protection of
the Holders, or to make any other provisions with respect to matters or
questions arising under the Unit Agreement or the Purchase Contracts that do
not adversely affect the interests of the Holders in any material respect.
Holders of the Purchase Contracts may not enforce the Unit Agreement
or such Purchase Contracts except as provided in the Unit Agreement.
Any incorporator, or past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation shall not have any
liability for any obligations of the Corporation under the Purchase Contracts
or the Unit Agreement or for any claim based on, with respect to or by reason
of such obligations or their creation. The Holder by his acceptance hereof
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
Prior to due presentment of a Unit Certificate or Purchase Contract
for registration of transfer, the Corporation, the Agent, the Trustee and the
Collateral Agent, and any agent of the Corporation, the Agent, the Trustee and
the Collateral Agent may treat the Person in whose name this Purchase Contract
is registered as a party to the Purchase Contracts evidenced hereby for the
purpose of performance of such Purchase Contracts and for all other purposes
whatsoever, and neither the Corporation, the Agent, the Trustee and the
Collateral Agent nor any such agent shall be affected by notice to the
contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute
the Purchase Contracts evidenced hereby on his behalf, authorizes and directs
the Agent on his behalf to take such other action, and covenants and agrees to
take such other action, as may be necessary or appropriate, or as may be
required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the purchase of the Purchase Contract Property [and the pledge of
the Debt Securities constituting part of the Unit of which this Purchase
Contract forms a part to the Collateral Agent on the Holder's behalf,][8]
appoints the agent as his attorney-in-fact for any and all such purposes, and
agrees to be bound by the terms thereof.
- --------
8 Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
No Purchase Contract evidenced hereby shall be valid or obligatory for
any purpose until countersigned and executed on behalf of the Holder by the
Agent, pursuant to the Unit Agreement.
IN WITNESS WHEREOF, Comcast Cable Communications, Inc. has
caused this instrument to be duly executed.
COMCAST CABLE
COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
[_______________],
as Agent, and as attorney-in-fact of the
Holder hereof
By:
------------------------------------
Authorized Officer
Countersigned:
[_______________],
as Agent
By:
------------------------------------
Authorized Officer
[IF PURCHASE CONTRACT IS A GLOBAL PURCHASE CONTRACT, INSERT]
SCHEDULE I
GLOBAL
PURCHASE CONTRACT
SCHEDULE OF EXCHANGES
The initial number of Purchase Contracts represented by this Global
Purchase Contract is __________. In accordance with the Unit Agreement pursuant
to which this Global Purchase Contract has been issued, the following (A)
exchanges of [the number of Purchase Contracts indicated below for a like
number of Purchase Contracts represented by a Global Purchase Contract that has
been separated from a Unit (a "Separated Purchase Contract")]1 [the number of
Purchase Contracts that had been represented by a Global Purchase Contract that
is part of a Unit (an "Attached Unit Purchase Contract") for a like number of
Purchase Contracts represented by this Purchase Contract]2 and (B) settlements
of the number of Purchase Contracts indicated below have been made:
<TABLE>
<CAPTION>
============ ================ ============ ================ ============ =========== =============== ===============
Number of
Attached Unit
Purchase
Contracts
Exchanged for
Reduced Purchase Increased Reduced
Number Number Contracts Number Number
Exchanged for Outstanding represented by Outstanding Number of Outstanding Notation
Date of Separated Following this Separated Following Purchase Following Made by or on
Exchange or Purchase Such Purchase Such Contracts Such Behalf of
Settlement Contract1 Exchange1 Contract2 Exchange2 Settled Settlement Agent
- ------------ ---------------- ------------ ---------------- ------------ ----------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
============ ================ ============ ================ ============ =========== =============== ===============
</TABLE>
- --------
1 Applies only if this Purchase Contract is part of a Unit.
2 Applies only if this Purchase Contract has been separated from a Unit.
[IF PURCHASE CONTRACT IS SEPARATED FROM UNIT, INSERT]
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Purchase
Contract(s) represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification
number)
_________________ (Insert address and zip code of assignee)
and irrevocably appoints _________________
agent to transfer this Certificate on the books of the Corporation. The agent
may substitute another to act for him or her.
Date:
Signature(s):
--------------------------------------------------------------------
--------------------------------------------------------------------
(Sign exactly as your name appears on the other side of
this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
[IF UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE, INSERT -
SCHEDULE A
GLOBAL
UNIT CERTIFICATE
SCHEDULE OF EXCHANGES
The initial number of Units represented by this Global Unit
Certificate is _________. In accordance with the Unit Agreement pursuant to
which this Global Unit Certificate has been issued, the following reductions of
the number of Units represented by this Global Unit Certificate have occurred:
<TABLE>
<CAPTION>
================== ============================= ======================= ============================ ======================
Number Reduced by Number Reduced by Number of Units Outstanding
Separation of the Component Settlement of Purchase Following any such Notation Made by or on
Date of Reduction Parts of this Unit Contracts Reduction Behalf of Paying Agent
- ------------------ ----------------------------- ----------------------- ---------------------------- ----------------------
<S> <C> <C> <C> <C>
================== ============================= ======================= ============================ ======================
</TABLE>
[IF UNIT IS A DEFINITIVE UNIT, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the Unit(s)
represented by this Certificate to:
_________________ (Insert assignee's social security or tax identification
number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The
agent may substitute another to act for him or her.
Date:
Signature(s):
---------------------------------------------------------------------
---------------------------------------------------------------------
(Sign exactly as your name appears on the other side of
this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to S.E.C. Rule 17Ad-15.]
Exhibit 4.17
[Form of Debt Warrant Agreement for Warrants Sold Alone]
COMCAST CABLE COMMUNICATIONS, INC.
and
_____________________,
as Warrant Agent
_________________________
DEBT WARRANT AGREEMENT
Dated as of ___________
________________________
Warrants to Purchase ________
_____________________
TABLE OF CONTENTS
Page
----
ARTICLE 1
issuance of warrants and execution and delivery of warrant Certificates
Section 1.1. Issuance of Warrants........................... 2
Section 1.2. Execution and Delivery of Warrant
Certificates................................... 2
Section 1.3. Issuance of Warrant Certificates............... 3
ARTICLE 2
Warrant Price, Duration and Exercise
Section 2.1. Warrant Price.................................. 4
Section 2.2. Duration of Warrants........................... 4
Section 2.3. Exercise of Warrants........................... 4
ARTICLE 3
Other Provisions Relating to Rights of Holders of Warrant
Section 3.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates............ 6
Section 3.2. Lost, Mutilated, Stolen or Destroyed Warrant
Certificates................................... 6
Section 3.3. Enforcement of Rights.......................... 7
Section 3.4. Merger, Consolidation, Conveyance or
Transfer....................................... 7
ARTICLE 4
Exchange and Transfer
Section 4.1. Exchange and Transfer.......................... 8
Section 4.2. Treatment of Holders of Warrant Certificates... 9
Section 4.3. Cancellation of Warrant Certificates........... 9
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent.................................. 10
Section 5.2. Conditions of Warrant Agent's Obligations...... 10
Section 5.3. Resignation and Appointment of Successor....... 12
ARTICLE 6
Miscellaneous
Section 6.1. Amendment...................................... 14
Section 6.2. Notices and Demands to the Company and Warrant
Agent.......................................... 14
Section 6.3. Addresses...................................... 14
Section 6.4. Applicable Law................................. 14
Section 6.5. Delivery of Prospectus......................... 14
Section 6.6. Obtaining of Governmental Approval............. 15
Section 6.7. Persons Having Rights Under Warrant Agreement.. 15
Section 6.8. Headings....................................... 15
Section 6.9. Counterparts................................... 15
Section 6.10. Inspection of Agreement....................... 15
Section 6.11. Notices to Holders of Warrants................ 15
TESTIMONIUM...............................................................16
SIGNATURES................................................................16
EXHIBIT A - Form of Warrant Certificate
DEBT WARRANT AGREEMENT(1)
THIS AGREEMENT dated as of between COMCAST CABLE
COMMUNICATIONS, INC., a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and , a [bank]
[trust company] duly incorporated and existing under the laws of ,
as Warrant Agent (the "Warrant Agent"),
- ----------
(1) Complete or modify the provisions of this form as appropriate to reflect
the terms of the Warrants and Warrant Securities. Monetary amounts may
be in U.S. dollars in a foreign currency or in a composite currency,
including but not limited to the European Currency Unit.
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of
May 1, 1997 (the "Senior Indenture") between the Company and Bank of Montreal
Trust Company, as Trustee (the "Senior Trustee"), and an Indenture dated as of
[___], 1998 (the "Subordinated Indenture") between the Company and [____], as
Trustee (the "Subordinated Trustee") (collectively the "Trustees" or "Trustee"
and "Indentures" or "Indenture"), providing for the issuance from time to time
of its unsecured debt securities to be issued in one or more series as
provided in the Indenture; and
WHEREAS, the Company proposes to sell [title of such debt
securities being offered] (the "Offered Securities") with one or more warrants
(the "Warrants") representing the right to purchase [title of such debt
securities purchasable through exercise of Warrants] (the "Warrant
Securities"), the Warrants to be evidenced by warrant certificates issued
pursuant to this Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf
of the Company in connection with the issuance, transfer, exchange, exercise
and replacement of the Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
transferred, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
issuance of warrants and execution and delivery of warrant
Certificates
Section 1.1. Issuance of Warrants. The Warrants shall be
evidenced by one or more Warrant Certificates. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase a Warrant Security in the principal amount of .
Section 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form substantially in the form set forth in Exhibit A hereto, shall
be dated and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Warrants may be listed, or to conform to usage. The Warrant Certificates
shall be signed on behalf of the Company by its chairman or vice chairman of
the Board of Directors, the president, any managing director, or the treasurer
of the Company, in each case under its corporate seal, which may but need not
be attested by its Secretary or one of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of such authorized officers
and may be imprinted or otherwise reproduced on the Warrant Certificates. The
corporate seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the Warrant Agent by manual signature. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence, and the only evidence, that the Warrant
Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of
the Warrant Certificates either manually or by facsimile signature shall cease
to be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant
Certificate shall mean any person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose.
Section 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount
not exceeding aggregate principal amount of Warrant Securities (except as
provided in Sections 2.3, 3.2 and 4.1) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
aggregate principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer as hereinafter provided or as
provided in the antepenultimate paragraph of Section 2.3.
Pending the preparation of definitive Warrant Certificates
evidencing Warrants, the Company may execute and the Warrant Agent shall
countersign and deliver temporary Warrant Certificates evidencing such
Warrants (printed, lithographed, typewritten or otherwise produced, in each
case in form satisfactory to the Warrant Agent). Such temporary Warrant
Certificates shall be issuable substantially in the form of the definitive
Warrant Certificates but with such omissions, insertions and variations as may
be appropriate for temporary Warrant Certificates, all as may be determined by
the Company with the concurrence of the Warrant Agent. Such temporary Warrant
Certificates may contain such reference to any provisions of this Warrant
Agreement as may be appropriate. Every such temporary Warrant Certificate
shall be executed by the Company and shall be countersigned by the Warrant
Agent upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Warrant Certificates. Without unreasonable
delay, the Company shall execute and shall furnish definitive Warrant
Certificates and thereupon such temporary Warrant Certificates may be
surrendered in exchange therefor without charge pursuant to and subject to the
provisions of Section 4.1, and the Warrant Agent shall countersign and deliver
in exchange for such temporary Warrant Certificates definitive Warrant
Certificates of authorized denominations evidencing a like aggregate number of
Warrants evidenced by such temporary Warrant Certificates. Until so
exchanged, such temporary Warrant Certificates shall be entitled to the same
benefits under this Warrant Agreement as definitive Warrant Certificates.
ARTICLE 2
Warrant Price, Duration and Exercise
Section 2.1. Warrant Price. Warrant Price. On 19 the
exercise price of each Warrant will be . During the period from
, 19 through and including , 19 , the exercise price of each
Warrant will be plus [accrued amortization of the original issue discount]
[accrued interest] from , 19 . On , 19 , the
exercise price of each Warrant will be . During the period from
, 19 through and including , 19 , the exercise price of
each Warrant will be plus [accrued amortization of the original issue
discount] [accrued interest] from 19 . [In each case, the original issue
discount will be amortized at a % annual rate, computed on an annual basis
using the "interest" method and using a 360-day year consisting of twelve
30-day months]. Such exercise price of Warrant Securities is referred to in
this Agreement as the "Warrant Price". [The original issue discount for each
principal amount of Warrant Securities is ].
Section 2.2. Duration of Warrants. Subject to Section 4.3(b),
each Warrant may be exercised [in whole but not in part] [in whole or in part]
[at any time, as specified herein, on or after [the date thereof] [ ,
19 ] and at or before [time, location] on , 19 (each day during
such period may hereinafter be referred to as an "Exercise Date")] [on [list
of specific dates] (each, an "Exercise Date")], or such later date as the
Company may designate by notice to the Warrant Agent and the Holders of
Warrant Certificates [in registered form and to the beneficial owners of the
Global Warrant Certificate] (the "Expiration Date"). Each Warrant not
exercised at or before [time, location] on the Expiration Date shall become
void, and all rights of the Holder [and any beneficial owners] of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease.
Section 2.3. Exercise of Warrants. [With respect to Warrants
evidenced by Warrant Certificates in registered form, during] [During] the
period specified in Section 2.2, any whole number of Warrants may be exercised
by providing certain information as set forth on the reverse side of the
Warrant Certificates evidencing such Warrants and by paying in full [in lawful
money of the United States of America] [in applicable currency] [in cash] [by
certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] [in immediately available funds,] the Warrant
Price for each Warrant exercised (plus accrued interest, if any, on the
Warrant Securities to be issued upon exercise of such Warrant from and
including the Interest Payment Date (as defined in the Indenture), if any, in
respect of such Warrant Securities immediately preceding the Exercise Date to
and including the Exercise Date (unless the Exercise Date is after the Regular
Record Date (as defined in the Indenture), if any, for such Interest Payment
Date, but on or before the immediately succeeding Interest Payment Date for
such Warrant Securities, in which event no such accrued interest shall be
payable)) to the Warrant Agent at its corporate trust office at [address] [or
at ], provided that such exercise is subject to receipt within five
business days of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate evidencing each Warrant exercised with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed.
The date on which payment in full of the Warrant Price (plus
any such accrued interest) is received by the Warrant Agent shall, subject to
receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised. The Warrant Agent shall deposit all funds
received by it in payment for the exercise of Warrants in an account of the
Company maintained with it (or in such other account as may be designated by
the Company) and shall advise the Company, by telephone or by facsimile
transmission or other form of electronic communication available to both
parties, at the end of each day on which a payment for the exercise of
Warrants is received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such advice to the Company in writing.
If a day on which Warrants may be exercised in the city in
which such Warrants are to be exercised shall be a Saturday or Sunday or a day
on which banking institutions in such city are authorized or required to be
closed, then, notwithstanding any other provision of this Agreement or the
Warrant Certificate evidencing such Warrants, but subject to the limitation
that no Warrant may be exercised after the Expiration Date, the Warrants shall
be exercisable on the next succeeding day which in such city is not a Saturday
or Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Trustee] in writing of (i) the number
of Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to be issued upon such exercise, (iii) delivery of any Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or the Trustee
shall reasonably require.
As soon as practicable after the exercise of any Warrant, but
subject to receipt by the Warrant Agent of the Warrant Certificate evidencing
such Warrant as provided in this Section, the Company shall issue, pursuant to
the Indentures, in authorized denominations to or upon the order of the Holder
of the Warrant Certificate evidencing each Warrant, the Warrant Securities to
which such Holder is entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issuance of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE 3
Other Provisions Relating to Rights of Holders of Warrant
Section 3.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Rights as Warrant Securityholder
Conferred by Warrants or Warrant Certificates. No Warrant Certificate or
Warrant evidenced thereby shall entitle the Holder of any beneficial owner
thereof to any of the rights of a holder or beneficial owner of Warrant
Securities, including, without limitation, the right to receive the payment of
principal of (premium, if any) or interest, if any, on Warrant Securities or to
enforce any of the covenants in the Indenture.
Section 3.2. Lost, Mutilated, Stolen or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss,
mutilation, theft or destruction of any Warrant Certificate and of such
security or indemnity as may be required by the Company and the Warrant Agent
to hold each of them and any agent of them harmless and, in the case of
mutilation of a Warrant Certificate, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of
the lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon
the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any stamp or other tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, mutilated, stolen or
destroyed Warrant Certificate shall represent an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed
Warrant Certificate shall be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of lost,
mutilated, stolen or destroyed Warrant Certificates.
Section 3.3. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate, without the
consent of the Warrant Agent, the relevant Trustee, the holder of any Offered
Securities of the Holder of any other Warrant Certificate, may, in its own
behalf and for its own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, its right to exercise its Warrants in the manner
provided in its Warrant Certificate and in this Agreement.
Section 3.4. Merger, Consolidation, Conveyance or Transfer.
(a) If at any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indentures, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted
for the Company, with the same effect, subject to the Indentures, as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon, except in the case of a transfer by way of lease, be relieved
of any further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Warrant Securities in its own name
pursuant to the Indentures, in fulfillment of its obligations to deliver
Warrant Securities upon exercise of the Warrants. All the Warrants so issued
shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such merger,
consolidation, conveyance or transfer, such changes in phraseology and form
(but not in substance) may be made in the Warrant Certificates representing
the Warrants thereafter to be issued as may be appropriate.
(b) The Warrant Agent may receive a written opinion of legal
counsel (who shall be acceptable to the Warrant Agent) as conclusive evidence
that any such merger, consolidation, conveyance or transfer complies with the
provisions of this Section and the Indentures.
ARTICLE 4
Exchange and Transfer
Section 4.1. Exchange and Transfer. (a) Upon surrender at the
corporate trust office of the Warrant Agent at [address] [or ], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other authorized denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided, however, that such
other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office
at [address] [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates upon surrender of
such Warrant Certificates to the Warrant Agent at its corporate trust office at
[address] or [ ] for exchange or registration of transfer, properly
endorsed [or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent.]
(c) No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange
or registration of transfer.
(d) Whenever any Warrant Certificates, are so surrendered for
exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates, duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not effect
any exchange or registration of transfer which will result in the issuance of
a Warrant Certificate, evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant.
(e) All Warrant Certificates, issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange or registration or transfer.
Section 4.2. Treatment of Holders of Warrant Certificates.
Each Holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company, the Warrant Agent and every subsequent Holder of such
Warrant Certificate that until the transfer of such Warrant Certificate is
registered on the books of such Warrant Agent, the Company and the Warrant
Agent may treat the registered Holder of such Warrant Certificate as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Warrants evidenced thereby, any notice to the
contrary notwithstanding.
Section 4.3. Cancellation of Warrant Certificates. (a) Any
Warrant Certificate surrendered for exchange or registration of transfer or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled
by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder
in exchange therefor or in lieu thereof. The Warrant Agent shall cause all
cancelled Warrant Certificates to be destroyed and shall deliver a certificate
of such destruction to the Company.
(b) If the Company notifies the relevant Trustee of its
election to redeem [, as a whole but not in part,] the Warrant Securities
pursuant to the Indenture or the terms thereof, the Company may elect, and
shall give notice to the Warrant Agent of its election, to cancel the
unexercised Warrants, the Warrant Certificates and the rights evidenced
thereby. Promptly after receipt of such notice by the Warrant Agent, the
Company shall, or, at the Company's request, the Warrant Agent shall in the
name of and at the expense of the Company, give notice of such cancellation
to the Holders of the Warrant Certificates, such notice to be so given not
less than 30 nor more than 60 days prior to the date fixed for the
redemption of the Warrant Securities pursuant to Indenture or the terms
thereof. The unexercised Warrants, the Warrant Certificates and the rights
evidenced thereby shall be cancelled and become void on the 15th day prior
to such date fixed for redemption.
ARTICLE 5
Concerning the Warrant Agent
Section 5.1. Warrant Agent. The Company hereby appoints as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein and in the
Warrant Certificates set forth; and hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and herein and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it. All of the terms and provisions with respect to such
powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
Section 5.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with
the Company for all services rendered by the Warrant Agent and to reimburse
the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
attorneys' fees) incurred by the Warrant Agent without negligence, bad faith
or breach of this Agreement on its part in connection with the services
rendered hereunder by the Warrant Agent. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Warrant Agent, arising out of or in connection with its acting as Warrant
Agent hereunder, as well as the reasonable costs and expenses of defending
against any claim of such liability
(b) Agent for the Company. In acting under this Agreement
and in connection with the Warrants and the Warrant Certificates, the
Warrant Agent is acting solely as agent of the Company and does not assume
any obligation or relationship of agency or trust for or with any of the
Holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it in its reasonable judgment, and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee
or body of holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this
Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as
Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have
no liability for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall
not be under any responsibility with respect to the validity or sufficiency
of this Agreement or the execution and delivery hereof (except the due
authorization to execute this Agreement and the due execution and delivery
hereof by the Warrant Agent) or with respect to the validity or execution
of any Warrant Certificates (except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein
shall be taken as the statements of the Company and the Warrant Agent assumes
no liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any of the Warrant Certificates countersigned by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the
receipt of any written demand from a Holder of a Warrant Certificate with
respect to such default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt to initiate
any proceedings at law or otherwise or, except as provided in Section 6.2,
to make any demand upon the Company.
Section 5.3. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the Holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf of
the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation
or removal of the Warrant Agent and any appointment of a successor Warrant
Agent shall become effective upon acceptance of appointment by the successor
Warrant Agent as provided in this subsection (b). In the event a successor
Warrant Agent has not been appointed and accepted its duties within 90 days
of the Warrant Agent's notice of resignation, the Warrant Agent may apply to
any court of competent jurisdiction for the designation of a successor Warrant
Agent. Upon its resignation or removal, the Warrant Agent shall be entitled to
the payment by the Company of the compensation and to the reimbursement of all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.2(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by it of such appointment, the predecessor Warrant Agent shall,
if not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, immunities, duties
and obligations of such predecessor with like effect as if originally named
as Warrant Agent hereunder, and such predecessor shall thereupon become
obligated to transfer, deliver and pay over, and such successor Warrant
Agent shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder
may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or
any corporation to which the Warrant Agent shall sell or otherwise transfer
all or substantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor
Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
ARTICLE 6
Miscellaneous
Section 6.1. Amendment. This Agreement and the terms of the
Warrants and the Warrant Certificates may be amended by the parties hereto,
without the consent of the Holder of any Warrant Certificate or the beneficial
owner of any Warrant, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or in the Warrant Certificates, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided that such
action shall not affect adversely the interests of the Holders of the Warrant
Certificates or the beneficial owners of Warrants in any material respect.
Section 6.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
Section 6.3. Addresses. Any communication from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: _____________, and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Comcast Cable
Communications, Inc. 1105 North Market Street, Wilmington, Delaware, 19801,
Attention: ______________ (or such other address as shall be specified in
writing by the Warrant Agent or by the Company).
Section 6.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 6.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or adequacy of
such Prospectus.
Section 6.6. Obtaining of Governmental Approval. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
federal and state laws (including without limitation a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
Section 6.7. Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the Holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
Section 6.8. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
Same instrument.
Section 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent for inspection by the Holder of
any Warrant Certificate. The Warrant Agent may require such Holder to submit
his Warrant Certificate for inspection by it.
Section 6.11. Notices to Holders of Warrants. Any notice to
Holders of Warrants evidenced by Warrant Certificates which by any provisions
of this Warrant Agreement is required or permitted to be given shall be given
by first class mail prepaid at such Holder's address as it appears on the
books of the Warrant Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
COMCAST CABLE COMMUNICATIONS, INC.
By__________________________
Name:
Title:
[WARRANT AGENT]
By__________________________
Name:
Title:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, 19__
COMCAST CABLE COMMUNICATIONS, INC.
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein
No. _______________ Warrants
This certifies that [_____________________] or registered
assigns is the registered owner of the above indicated number of Warrants,
each Warrant entitling such registered owner to purchase, at any time [after
the close of business on _________, 19__, and] on or before the close of
business on ____________, 19__, $________ principal amount of [Title of
Warrant Debt Securities] (the "Warrant Debt Securities") of Comcast Cable
Communications, Inc. (the "Company"), issued or to be issued under the
Indenture (as hereinafter defined), on the following basis.(2) [During the
period from ________, 19__ through and including ___________, 19__, each
Warrant shall entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase from the Company the principal amount of Warrant Debt
Securities stated above in this Warrant Certificate at the exercise price of
___% of the principal amount thereof [plus accrued amortization, if any, of the
original issue discount of the Warrant Debt Securities][plus accrued interest,
if any, from the most recent date from which interest shall have been paid on
the Warrant Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from ___________, 19__]; [in each case, the original
issue discount ($_______ for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a ___% annual rate, computed on a[n]
[semi-]annual basis[, using a 360-day year constituting of twelve 30-day
months] [(the "Exercise Price")]. The Holder of this Warrant Certificate may
exercise the Warrants evidenced hereby, in whole or in part, by surrendering
this Warrant Certificate, with the purchase from set forth hereon duly
completed, accompanied [by payment in full, in lawful money of the United
States of America, [in cash or by certified check or official bank check in
New York Clearing House funds] [by bank wire transfer in immediately available
funds]], the Exercise Price for each Warrant exercised, to the Warrant Agent
(as hereinafter defined), at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the "Warrant Agent") [or at
____________,] at the addresses specified on the reverse hereof and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of Warrant Debt Securities in the principal
amount of [ ] or any integral multiple thereof.
- ------------
(2)Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants and the Warrant Debt securities.
The term "Holder" as used herein shall mean the person in whose
name at the time such Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose pursuant to Section 3.01
of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Debt Securities in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this
warrant Certificate, there shall be issued to the registered owner hereof a
new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with
the Warrant Agreement dated as of __________, 19__ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _______________].
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture, dated as of ________________ (the
"Indenture"), between the Company and ________________, a [corporation]
[national banking association] organized under the laws of the State of
__________, as trustee (such trustee, and any successors to such trustee, the
"Trustee") and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the Indenture,
including the form of the Warrant Debt Securities, are on file at the
corporate trust office of the Trustee [and at __________________________].
This Warrant Certificate, and all rights hereunder, may be
transferred when surrendered at the corporate trust office of the Warrant
Agent [or _________] by the registered owner or his assigns, in person or by
an attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement].
After authentication by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or at
_____________] for Warrant Certificates representing the same aggregate number
of Warrants.
This Warrant Certificate shall not entitle the registered owner
hereof to any of the rights of a registered holder of the Warrant Debt
Securities, including, without limitation, the right to receive payments of
principal of (and premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants of the Indenture.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed under its corporate seal.
Dated: _____________
COMCAST CABLE
COMMUNICATIONS, INC.
By_______________________________
Attest:
__________________________________
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
_________________________________________
As Warrant Agent
By_______________________________________
Authorized Signature
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay [in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _________, Corporate Trust Department, _______________, Attn:
___________ [or ________________], which payment should specify the name of
the Holder of this Warrant Certificate and the number of Warrants exercised by
such Holder. In addition, the Holder of this Warrant Certificate should
complete the information required below and present in person or mail by
registered mail this Warrant Certificate to the Warrant Agent at the addresses
set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________
Warrants, represented by this Warrant Certificate, to purchase $_________
principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt
Securities") of Comcast Cable Communications, Inc. and represents that he has
tendered payment for such Warrant Debt Securities [in cash or by certified
check or official bank check in New York Clearing House funds or by bank wire
transfer in immediately available funds] to the order of Comcast Cable
Communications, Inc., c/o Treasurer in the amount of $___________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Debt Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less
than all of the Warrant Debt Securities purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated:
Name________________________________
(Please Print)
_____________________________________
(Insert Social Security or Other
Identifying Number of Holder) Address_____________________________
_____________________________
Signature___________________________
(Signature must conform in
all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear a
signature guaranteed by a
a bank, trust company or
member broker of the New
York or Midwest Stock
Exchange.)
This Warrant may be exercised at the following addresses:
By hand at ________________________
________________________
________________________
________________________
By mail at ________________________
________________________
________________________
________________________
(Instructions as to form and delivery of Warrant Debt Securities and/or
Warrant Certificates):
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and
transfers unto
Please insert social
security or other
identifying number
_____________________________
_________________________________
(Please print name and address
including zip code)
______________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
____________________________________
Signature
(Signature must conform in
all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear a
signature guaranteed by a
a bank, trust company or
member broker of the New
York or Midwest Stock
Exchange.)]
Signature Guaranteed:
____________________________________]
Exhibit 4.19
[Form of Debt Warrant Agreement
For Warrant Sold Attached
To Debt Securities]
COMCAST CABLE COMMUNICATIONS, INC.
and
---------------------,
as Warrant Agent
--------------------------
DEBT WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
----------------------------
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants...........................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates.................2
SECTION 1.03. Issuance of Warrant Certificates...............................3
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price..................................................4
SECTION 2.02. Duration of Warrants...........................................5
SECTION 2.03. Exercise of Warrants...........................................5
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrant or Warrant Certificates................................7
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant Certificates.....7
SECTION 3.03. Enforcement of Rights..........................................7
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer..................8
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer..........................................8
SECTION 4.02. Treatment of Holders of Warrant Certificates...................9
SECTION 4.03. Cancellation of Warrant Certificates..........................10
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent.................................................10
SECTION 5.02. Conditions of Warrant Agent's Obligations.....................11
SECTION 5.03. Resignation and Appointment of Successor......................12
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment.....................................................14
SECTION 6.02. Notices and Demands to the Company and Warrant Agent..........14
SECTION 6.03. Addresses.....................................................15
SECTION 6.04. Applicable Law................................................15
SECTION 6.05. Delivery of Prospectus........................................15
SECTION 6.06. Obtaining of Governmental Approval............................15
SECTION 6.07. Persons Having Rights under Warrant Agreement.................15
SECTION 6.08. Headings......................................................16
SECTION 6.09. Counterparts..................................................16
SECTION 6.10. Inspection of Agreement.......................................16
SECTION 6.11. Notices to Holders of Warrants................................16
TESTIMONIUM....................................................................
SIGNATURES.....................................................................
EXHIBIT A - Form of Warrant Certificate
DEBT WARRANT AGREEMENT[1]
THIS AGREEMENT dated as of between COMCAST CABLE COMMUNICATIONS, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and , a [bank] [trust company] duly incorporated and
existing under the laws of , as Warrant Agent (the "Warrant Agent"),
- --------
[1] Complete or modify the provisions of this form as appropriate to
reflect the terms of the Warrants and Warrant Securities. Monetary amounts may
be in U.S. dollars in a foreign currency or in a composite currency, including
but not limited to the European Currency Unit.
Bracketed language here and throughout this Agreement should be
inserted as follows:
1. If Warrants are immediately detachable from the Offered Securities;
and
2. If Warrants are detachable from the Offered Securities only after
the Detachable Date.
W I T N E S S E T H :
WHEREAS, the Company has entered into an Indenture dated as of May 1,
1997 (the "Senior Indenture") between the Company and Bank of Montreal Trust
Company, as Trustee (the "Trustee") and an Indenture dated as of [_____], 1998
(the "Subordinated Indenture") between the Company and [_________], as Trustee
(the "Subordinated Indenture") (collectively, the "Trustees" or "Trustee" and
"Indentures" or "Indenture"), providing for the issuance from time to time of
its unsecured debt securities to be issued in one or more series as provided in
the Indenture; and
WHEREAS, the Company proposes to sell [Title of such debt securities
being offered] (the "Offered Securities") with one or more warrants (the
"Warrants") representing the right to purchase [title of such debt securities
purchasable through exercise of Warrants] (the "Warrant Securities"), the
Warrants to be evidenced by Warrant certificates issued pursuant to this
Agreement (the "Warrant Certificates"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, transferred,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT
CERTIFICATES
SECTION 1.01. Issuance of Warrants. Issuance of Warrants. The Warrants
shall be evidenced by one or more Warrant Certificates. Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase a Warrant Security in the principal amount of and
shall be initially issued in connection with the issuance of the Offered
Securities [1: and shall be separately transferable immediately thereafter] [2:
but shall not be separately transferable until on and after , 19 (the
"Detachable Date")]. The Warrants shall be initially issued [in units] with the
Offered Securities, and each Warrant [included in such a unit] shall evidence
the right, subject to the provisions contained herein and in the Warrant
Certificates, to purchase [ ] principal amount of Warrant Securities [included
in such a unit].
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant, whenever issued, shall be evidenced by a Warrant Certificate in
registered form, substantially in the form set forth in Exhibit A hereto, shall
be dated and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its chairman or vice chairman of the Board of
Directors, the president, any managing director or the treasurer of the
Company, in each case under its corporate seal, which may but need not be,
attested by its Secretary or one of its Assistant Secretaries. Such signatures
may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The corporate
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent by manual signature. Such signature by the
Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent as provided herein, such
Warrant Certificates may be countersigned and delivered notwithstanding that
the person who signed such Warrant Certificates ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
The term "Holder", when used with respect to any Warrant Certificate,
shall mean any person in whose name at the time such Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent for that
purpose [2: or, prior to the Detachable Date, any person in whose name at the
time the Offered Security to which such Warrant Certificate is attached is
registered upon the register of the Offered Securities. Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date.]
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
aggregate principal amount of Warrant Securities (except as provided in
Sections 2.03, 3.02 and 4.01) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Warrant Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates
duly executed on behalf of the Company, countersign Warrant Certificates
evidencing ___________ Warrants representing the right to purchase up to
aggregate principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or
in connection with their transfer as hereinafter provided or as provided in the
antepenultimate paragraph of Section 2.03.
Pending the preparation of definitive Warrant Certificates evidencing
Warrants, the Company may execute and the Warrant Agent shall countersign and
deliver temporary Warrant Certificates evidencing such Warrants (printed,
lithographed, typewritten or otherwise produced, in each case in form
satisfactory to the Warrant Agent). Such temporary Warrant Certificates shall
be issuable substantially in the form of the definitive Warrant Certificates
but with such omissions, insertions and variations as may be appropriate for
temporary Warrant Certificates, all as may be determined by the Company with
the concurrence of the Warrant Agent. Such temporary Warrant Certificates may
contain such reference to any provisions of this Warrant Agreement as may be
appropriate. Every such temporary Warrant Certificate shall be executed by the
Company and shall be countersigned by the Warrant Agent upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Warrant Certificates. Without unreasonable delay, the Company shall
execute and shall furnish definitive Warrant Certificates and thereupon such
temporary Warrant Certificates may be surrendered in exchange therefor without
charge pursuant to and subject to the provisions of Section 4.01, and the
Warrant Agent shall countersign and deliver in exchange for such temporary
Warrant Certificates definitive Warrant Certificates of authorized
denominations evidencing a like aggregate number of Warrants evidenced by such
temporary Warrant Certificates. Until so exchanged, such temporary Warrant
Certificates shall be entitled to the same benefits under this Warrant
Agreement as definitive Warrant Certificates.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. On , 19 the exercise price
of each Warrant will be . During the period from , 19 through
and including , 19 , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from , 19 . On , 19 the exercise price of each Warrant
will be . During the period from , 19 through and including
, 19 , the exercise price of each Warrant will be plus [accrued
amortization of the original issue discount] [accrued interest] from , 19 .
[In each case, the original issue discount will be amortized at a % annual
rate, computed on an annual basis using the "interest" method and using a 360-
day year consisting of twelve 30-day months]. Such exercise price of Warrant
Securities is referred to in this Agreement as the "Warrant Price". [The
original issue discount for each principal amount of Warrant Securities is ].
SECTION 2.02. Duration of Warrants. Subject to Section 4.03(b), each
Warrant may be exercised [in whole but not in part] [in whole or in part] [at
any time, as specified herein, on or after [the date thereof] [ , 19 ] and at
or before [time, location] on , 19 (each day during such period may hereinafter
be referred to as an "Exercise Date")] [on [list of specific dates] (each, an
"Exercise Date")], or such later date as the Company may designate by notice to
the Warrant Agent and the Holders of Warrant Certificates [in registered form
and to the beneficial owners of the Global Warrant Certificate] (the
"Expiration Date"). Each Warrant not exercised at or before [time, location] on
the Expiration Date shall become void, and all rights of the Holder [and any
beneficial owners] of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. During the period specified in
Section 2.02, any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant
Certificates evidencing such Warrants and by paying in full [in lawful money of
the United States of America] [in applicable currency] [in cash] [by certified
check or official bank check or by bank wire transfer, in each case,] [by bank
wire transfer] [in immediately available funds,] the Warrant Price for each
Warrant exercised (plus accrued interest, if any, on the Warrant Securities to
be issued upon exercise of such Warrant from and including the Interest Payment
Date (as defined in the Indenture), if any, in respect of such Warrant
Securities immediately preceding the Exercise Date to and including the
Exercise Date (unless the Exercise Date is after the Regular Record Date (as
defined in the Indenture), if any, for such Interest Payment Date, but on or
before the immediately succeeding Interest Payment Date for such Warrant
Securities, in which event no such accrued interest shall be payable in respect
of Warrant Securities to be issued in registered form)) to the Warrant Agent at
its corporate trust office at [address] [or at ], provided that such exercise
is subject to receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate evidencing each
Warrant exercised with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and
duly executed.
The date on which payment in full of the Warrant Price (plus any such
accrued interest) is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on which the
Warrant is exercised. The Warrant Agent shall deposit all funds received by it
in payment for the exercise of Warrants in an account of the Company maintained
with it (or in such other account as may be designated by the Company) and
shall advise the Company, by telephone or by facsimile transmission or other
form of electronic communication available to both parties, at the end of each
day on which a payment for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
advice to the Company in writing.
If a day on which Warrants may be exercised in the city in which such
Warrants are to be exercised shall be a Saturday or Sunday or a day on which
banking institutions in such city are authorized or required to be closed,
then, notwithstanding any other provision of this Agreement or the Warrant
Certificate evidencing such Warrants, but subject to the limitation that no
Warrant may be exercised after the Expiration Date, the Warrants shall be
exercisable on the next succeeding day which in such city is not a Saturday or
Sunday or a day on which banking institutions in such city are authorized or
required to be closed.
The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee in writing of (i) the number of
Warrants exercised, (ii) the instructions of each Holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the Warrant
Securities to be issued upon such exercise, (iii) delivery of any Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise, and (iv) such other information as the Company or the Trustee
shall reasonably require.
As soon as practicable after the exercise of any Warrant, but subject
to receipt by the Warrant Agent of the Warrant Certificate evidencing such
Warrant as provided in this Section, the Company shall issue, pursuant to the
Indenture, in authorized denominations to or upon the order of the Holder of
the Warrant Certificate evidencing each Warrant, the Warrant Securities to
which such Holder is entitled, in fully registered form, registered in such
name or names as may be directed by such Holder. If fewer than all of the
Warrants evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities, and in the event that any
such transfer is involved, the Company shall not be required to issue or
deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrant
or Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby
shall entitle the Holder or any beneficial owner thereof to any of the rights
of a holder or beneficial owner of Warrant Securities, including, without
limitation, the right to receive the payment of principal of (premium, if any)
or interest, if any, on Warrant Securities or to enforce any of the covenants
in the Indenture.
SECTION 3.02. Lost, Mutilated, Stolen, or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss,
mutilation, theft or destruction of any Warrant Certificate and of such
security or indemnity as may be required by the Company and the Warrant Agent
to hold each of them and any agent of them harmless and, in the case of
mutilation of a Warrant Certificate, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, mutilated, stolen or destroyed Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon
the issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or other tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, mutilated, stolen or destroyed Warrant
Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement of lost, mutilated, stolen
or destroyed Warrant Certificates.
SECTION 3.03. Enforcement of Rights. Notwithstanding any of the
provisions of this Agreement, any Holder of a Warrant Certificate, without the
consent of the Warrant Agent, the Trustee, the holder of any Offered Securities
or the Holder of any other Warrant Certificate, may, in its own behalf and for
its own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce, or otherwise in respect of,
its right to exercise its Warrants in the manner provided in its Warrant
Certificate and in this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer. (a) If at
any time there shall be a merger or consolidation of the Company or a
conveyance or transfer of its property and assets substantially as an entirety
as permitted under the Indenture, then in any such event the successor or
assuming corporation referred to therein shall succeed to and be substituted
for the Company, with the same effect, subject to the Indenture, as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon, except in the case of a transfer by way of lease, be relieved
of any further obligation hereunder and under the Warrants and the Warrant
Certificates, and the Company as the predecessor corporation, except in the
case of a transfer by way of lease, may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation may
thereupon cause to be signed, and may issue either in its own name or in the
name of the Company, Warrant Certificates evidencing any or all of the Warrants
issuable hereunder which theretofore shall not have been signed by the Company,
and may execute and deliver Warrant Securities in its own name pursuant to the
Indenture, in fulfillment of its obligations to deliver Warrant Securities upon
exercise of the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Warrants
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Warrants had been issued at the date of the execution
hereof. In any case of any such merger, consolidation, conveyance or transfer,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Certificates representing the Warrants thereafter to be issued as may
be appropriate.
(b) The Warrant Agent may receive a written opinion of legal counsel
(who shall be acceptable to the Warrant Agent) as conclusive evidence that any
such merger, consolidation, conveyance or transfer complies with the provisions
of this Section and the Indenture.
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer. (a) [1: Upon] [2: Prior to the
Detachable Date, a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which such Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security, shall operate a1so to
transfer the related Warrant Certificates. On or after the Detachable Date,
upon] surrender at the corporate trust office of the Warrant Agent at [address]
[or ], Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other authorized denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided, however, that
such other Warrant Certificates shall evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered.
(b) The Warrant Agent shall keep, at its corporate trust office at
[address] [and at ], books in which, subject to such reasonable regulations as
it may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates upon surrender of such Warrant
Certificates to the Warrant Agent at its corporate trust office at [address] or
[ ] for exchange or registration of transfer, properly endorsed [or accompanied
by appropriate instruments of registration of transfer and written instructions
for transfer, all in form satisfactory to the Company and the Warrant Agent.
(c) No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such exchange or registration of
transfer.
(d) Whenever any Warrant Certificates, are so surrendered for
exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates, duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not effect
any exchange or registration of transfer which will result in the issuance of a
Warrant Certificate, evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant
(e) All Warrant Certificates, issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations, and entitled to the same
benefits under this Agreement, as the Warrant Certificates surrendered for such
exchange or registration or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. Each
Holder of a Warrant Certificate, by accepting the same, consents and agrees
with the Company, the Warrant Agent and every subsequent Holder of such Warrant
Certificate that until the transfer of such Warrant Certificate is registered
on the books of such Warrant Agent [2: or, prior to the Detachable Date, until
the transfer of the Offered Security to which such Warrant Certificate is
attached, is registered in the register of the Offered Securities], the Company
and the Warrant Agent may treat the registered Holder of such Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. (a) Any Warrant
Certificate surrendered for exchange or registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in
1ieu thereof. The Warrant Agent shall cause all cancelled Warrant Certificates
to be destroyed and shall deliver a certificate of such destruction to the
Company.
(b) If the Company notifies the Trustee of its election to redeem [2:
prior to the Detachable Date] [, as a whole but not in part,] [2: the Offered
Securities [or] [and]] the Warrant Securities pursuant to the Indenture or the
terms thereof, the Company may elect, and shall give notice to the Warrant
Agent of its election, to cancel the unexercised Warrants, the Warrant
Certificates and the rights evidenced thereby. Promptly after receipt of such
notice by the Warrant Agent, the Company shall, or, at the Company's request,
the Warrant Agent shall in the name of and at the expense of the Company, give
notice of such cancellation to the Holders of the Warrant Certificates, such
notice to be so given not less than 30 nor more than 60 days prior to the date
fixed for the redemption of [2: the Offered Securities [or] [and]] the Warrant
Securities pursuant to the Indenture or the terms thereof. The unexercised
Warrants, the Warrant Certificates and the rights evidenced thereby shall be
cancelled and become void on the 15th day prior to such date fixed for
redemption.
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein and in the Warrant
Certificates set forth; and hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and herein and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the Holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the
reasonable costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrants and the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it in its reasonable judgment, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee
or body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall have no
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due authorization to
execute this Agreement and the due execution and delivery hereof by the Warrant
Agent) or with respect to the validity or execution of any Warrant Certificates
(except its countersignature thereof).
(h) No Liability for Recitals. The recitals contained herein shall be
taken as the statements of the Company and the Warrant Agent assumes no
liability for the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates countersigned by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a Holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.02, to make any demand upon the
Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the Holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such by giving
written notice of its resignation to the Company, specifying the desired date
on which its resignation shall become effective; provided, however, that such
date shall be not less than 90 days after the date on which such notice is
given unless the Company agrees to accept shorter notice. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized
under the laws of the jurisdiction of its organization to exercise corporate
trust powers) by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant Agent
and one copy to the successor Warrant Agent. The Company may, at any time and
for any reason, remove the Warrant Agent and appoint a successor Warrant Agent
(qualified as aforesaid) by written instrument in duplicate signed on behalf of
the Company and specifying such removal and the date when it is intended to
become effective, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. Any resignation or
removal of the Warrant Agent and any appointment of a successor Warrant Agent
shall become effective upon acceptance of appointment by the successor Warrant
Agent as provided in this subsection (b). In the event a successor Warrant
Agent has not been appointed and accepted its duties within 90 days of the
Warrant Agent's notice of resignation, the Warrant Agent may apply to any court
of competent jurisdiction for the designation of a successor Warrant Agent.
Upon its resignation or removal, the Warrant Agent shall be entitled to the
payment by the Company of the compensation and to the reimbursement of all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by it hereunder as agreed to in Section 5.02(a).
(c) The Company shall remove the Warrant Agent and appoint a
successor Warrant Agent if the Warrant Agent (i) shall become incapable of
acting, (ii) shall be adjudged bankrupt or insolvent, (iii) shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, (iv) shall consent to, or shall have had
entered against it a court order for, any such relief or to the appointment of
or taking possession by any such official in any involuntary case or other
proceedings commenced against it, (v) shall make a general assignment for the
benefit of creditors or (vi) shall fail generally to pay its debts as they
become due. Upon the appointment as aforesaid of a successor Warrant Agent and
acceptance by it of such appointment, the predecessor Warrant Agent shall, if
not previously disqualified by operation of law, cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor shall thereupon become obligated to transfer, deliver and
pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement and the terms of the Warrants
and the Warrant Certificates may be amended by the parties hereto, without the
consent of the Holder of any Warrant Certificate or the beneficial owner of any
Warrant, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or in
the Warrant Certificates, or making any other provisions with respect to
matters or questions arising under this Agreement as the Company and the
Warrant Agent may deem necessary or desirable, provided that such action shall
not affect adversely the interests of the Holders of the Warrant Certificates
or the beneficial owners of Warrants in any material respect.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Comcast Cable
Communications, Inc., 1105 North Market Street, Wilmington, Delaware, 19801,
Attention: (or such other address as shall be specified in writing by
the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions hereof and thereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the Holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued
upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any
such delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approval. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States federal and
state laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrant Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the Holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the Holder of any Warrant Certificate. The
Warrant Agent may require such Holder to submit his Warrant Certificate for
inspection by it.
SECTION 6.11. Notices to Holders of Warrants. Any notice to Holders of
Warrants evidenced by Warrant Certificates which by any provisions of this
Warrant Agreement is required or permitted to be given shall be given by first
class mail prepaid at such Holder's address as it appears on the books of the
Warrant Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date first above written.
COMCAST CABLE COMMUNICATIONS, INC.
By________________________
Name:
Title:
[WARRANT AGENT]
By________________________
Name:
Title:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Prior to _______________, this
Warrant Certificate may be
transferred or exchanged if
and only if the [Title of
Offered Debt Security] to
which it was initially
attached is so transferred or
exchanged.
Form of Legend if [Prior to ________________,
Warrants are not Warrants evidenced by this
immediately exercisable: Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _________, 19__
COMCAST CABLE COMMUNICATIONS, INC.
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein
------------------------------------
No. _______________ Warrants
This certifies that [_____________________] or registered assigns is
the registered] owner of the above indicated number of Warrants, each Warrant
entitling such registered owner to purchase, at any time [after the close of
business on _________, 19__, and] on or before the close of business on
____________, 19__, $________ principal amount of [Title of Warrant Debt
Securities] (the "Warrant Debt Securities") of Comcast Cable Communications,
Inc. (the "Company"), issued or to be issued under the Indenture (as
hereinafter defined), on the following basis.2 [During the period from
________, 19__ through and including ___________, 19__, each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the Company the principal amount of Warrant Debt Securities
stated above in this Warrant Certificate at the exercise price of ___% of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities][plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from ___________, 19__]; [in each case, the original issue
discount ($_______ for each $1,000 principal amount of Warrant Debt Securities)
will be amortized at a ___% annual rate, computed on a[n] [semi-]annual basis[,
using a 360-day year constituting of twelve 30-day months] [(the "Exercise
Price")]. The Holder of this Warrant Certificate may exercise the Warrants
evidenced hereby, in whole or in part, by surrendering this Warrant
Certificate, with the purchase from set forth hereon duly completed,
accompanied [by payment in full, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately available funds]],
the Exercise Price for each Warrant exercised, to the Warrant Agent (as
hereinafter defined), at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the "Warrant Agent") [or at ____________,]
at the addresses specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined). This Warrant Certificate may be exercised only for the
purchase of Warrant Debt Securities in the principal amount of [ ] or any
integral multiple thereof.
- --------
[2] Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants and the Warrant Debt securities.
The term "Holder" as used herein shall mean, prior to _________, 19__
(the "Detachable Date"), the registered owner of the Company's [title of
Offered Debt Securities] to which such Warrant Certificate was initially
attached, and after such Detachable Date, the person in whose name at the time
such Warrant Certificate shall be registered upon the books to be maintained by
the Warrant Agent for that purpose pursuant to Section 3.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this warrant
Certificate, there shall be issued to the registered owner hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________, 19__ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _______________].
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be issued under
and in accordance with an Indenture, dated as of ________________ (the
"Indenture"), between the Company and ________________, a [corporation]
[national banking association] organized under the laws of the State of
__________, as trustee (such trustee, and any successors to such trustee, the
"Trustee") and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the Indenture,
including the form of the Warrant Debt Securities, are on file at the corporate
trust office of the Trustee [and at ______________________________].
Prior to ___________, 19__ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Offered Debt Security] (the "Offered Debt Security") to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or
in conjunction with, an exchange or transfer of such Offered Debt Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Debt Security on the register of the Offered Debt Securities shall operate also
to transfer this Warrant Certificate. After the Detachable Date, this Warrant
Certificate, and all rights hereunder, may be transferred when surrendered at
the corporate trust office of the Warrant Agent [or _________] by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.
Except as provided in the immediately preceding paragraph, after
authentication by the Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the corporate trust
office of the Warrant Agent [or at _____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the registered owner hereof
to any of the rights of a registered holder of the Warrant Debt Securities,
including, without limitation, the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated: _____________
COMCAST CABLE
COMMUNICATIONS, INC.
By
-----------------------------------------
Attest:
- ------------------------------
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
- ------------------------------
As Warrant Agent
By
----------------------------
Authorized Signature
[REVERSE] [FORM OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds or by bank wire transfer in immediately available
funds], the Exercise Price in full for each of the Warrants exercised, to
_________, Corporate Trust Department, _______________, Attn: ___________ [or
________________], which payment should specify the name of the Holder of this
Warrant Certificate and the number of Warrants exercised by such Holder. In
addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail
this Warrant Certificate to the Warrant Agent at the addresses set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _________
Warrants, represented by this Warrant Certificate, to purchase $_________
principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt
Securities") of Comcast Cable Communications, Inc. and represents that he has
tendered payment for such Warrant Debt Securities [in cash or by certified
check or official bank check in New York Clearing House funds or by bank wire
transfer in immediately available funds] to the order of Comcast Cable
Communications, Inc., c/o Treasurer in the amount of $___________ in accordance
with the terms hereof. The undersigned requests that said principal amount of
Warrant Debt Securities be in fully registered form, in the authorized
denominations, registered in such names and delivered, all as specified in
accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all
of the Warrant Debt Securities purchasable hereunder, the undersigned requests
that a new Warrant Certificate representing the remaining balance of the
Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated:
Name
-----------------------------------
(Please Print)
- ----------------------------------
(Insert Social Security or Other
Identifying Number of Holder) Address
--------------------------------
--------------------------------
Signature
------------------------------
(Signature must conform in
all respects to name of
holder as specified on the
face of this Warrant
Certificate and must bear a
signature guaranteed by a a
bank, trust company or
member broker of the New
York or Midwest Stock
Exchange.)
This Warrant may be exercised at the following addresses:
By hand at
--------------------------
--------------------------
--------------------------
By mail at
--------------------------
--------------------------
--------------------------
(Instructions as to form and delivery of Warrant Debt Securities and/or Warrant
Certificates):
[[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED __________________ hereby sells, assigns and
transfers unto
Please insert social
security or other
identifying number
--------------------------
- --------------------------------------------
(Please print name and address
including zip code)
- -------------------------------------------------------------------------------
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________, Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
-----------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear a
signature guaranteed by a a bank,
trust company or member broker of
the New York or Midwest Stock
Exchange.)]
Signature Guaranteed:
___________________________________________]
Exhibit 4.21
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of __________, 1998 (this "Agreement"),
among Comcast Cable Communications, Inc., a Delaware corporation (the
"Company"), _____________, not individually but solely as collateral agent (in
such capacity, together with its successors in such capacity, the "Collateral
Agent"), and _______________________, not individually but solely as purchase
contract agent and as attorney-in-fact of the Holders (as hereinafter defined)
from time to time of the Securities (as hereinafter defined) (in such capacity,
together with its successors in such capacity, the "Purchase Contract Agent")
under the Purchase Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued ____% [____________] (the
"Securities").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) ___% United States Treasury Notes due ________, ____
("Treasury Notes") having a principal amount equal to $__________ (the "Stated
Amount") and maturing on _________, ____ (the "Final Settlement Date"), subject
to the pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters to purchase the Treasury Notes
on its behalf with the proceeds of the offering of the Securities and the
Company has simultaneously conveyed such Treasury Notes to the Holders as a
part of the Securities.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract Agreement)
from time to time of the Securities have irrevocably authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided hereby of the Treasury Notes constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular; and
(2) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O-Book-Entry Procedure
of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115 et. seq.)
and any other regulations of the United States Treasury Department from time to
time applicable to the transfer or pledge of book-entry U.S. Treasury
Securities.
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Board Resolution" has the meaning specified in the Purchase Contract
Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order
to be closed.
"Collateral Agent" has the meaning specified in the first paragraph of
this instrument.
"Collateral Account" means the account maintained at _____________ in
the name "_____________ as Collateral Agent of Comcast Cable Communications,
Inc. as pledgee of _____________________ as Purchase Contract Agent".
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase Contract
Agreement.
"Early Settlement Amount" has the meaning specified in the Purchase
Contract Agreement.
"Final Settlement Date" has the meaning specified in the Recitals.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Collateral Agent or the Purchase Contract Agent,
as the case may be.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2
hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Termination Event" has the meaning specified in the Purchase Contract
Agreement.
"Treasury Notes" has the meaning specified in the Recitals.
Section 2. The Pledge. The Holders from time to time of the Securities
acting through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge and grant to the Collateral Agent for the benefit of the Company, as
collateral security for the performance when due by such Holders of their
respective obligations under the Purchase Contracts constituting part of such
Securities, a security interest in all of the right, title and interest of such
Holders in the Treasury Notes constituting a part of such Securities. Prior to
or concurrently with the execution and delivery of this Agreement, the initial
Holders and the Purchase Contract Agent shall (i) cause the Treasury Notes to
be transferred to the Collateral Agent by Federal Reserve Bank-Wire to the
account of the Collateral Agent and (ii) the Collateral Agent shall credit the
Treasury Notes to the Collateral Account; in each case pursuant to Applicable
Treasury Regulations and to the Uniform Commercial Code to the extent such laws
are applicable. The pledge provided in this Section 2 is herein referred to as
the "Pledge" and the Treasury Notes subject to the Pledge, excluding any
Treasury Notes released from the Pledge as provided in Section 4 hereof, are
hereinafter referred to as the "Pledged Treasury Notes". Subject to the Pledge,
the Holders from time to time of the Securities shall have full beneficial
ownership of the Treasury Notes constituting a part of such Securities.
Section 3. Distribution of Principal and Interest. (a) All payments of
principal of, or interest on, any Treasury Notes constituting part of the
Securities received by the Collateral Agent shall be paid by the Collateral
Agent by wire transfer in same day funds no later than 1:00 p.m., New York City
time, on the Business Day such interest payment is received by the Collateral
Agent (provided that in the event such interest payment is received by the
Collateral Agent on a day that is not a Business Day or after 1:00 p.m., New
York City time, on a Business Day, then such payment shall be made no later
than 10:00 a.m., New York City time, on the next succeeding Business Day) (i)
in the case of (A) interest payments and (B) any principal payments with
respect to any Treasury Notes that have been released from the Pledge pursuant
to Section 4 hereof, to the Purchase Contract Agent to the account designated
by it for such purpose and (ii) in the case of principal payments on any
Pledged Treasury Notes, the Purchase Contract Agent on behalf of the Holder
hereby directs the Collateral Agent to make such payments to the Company, in
full satisfaction of the respective obligations of the Holders of the
Securities of which such Pledged Treasury Notes are a part under the Purchase
Contracts forming a part of such Securities. All such payments received by the
Purchase Contract Agent as provided herein shall be applied by the Purchase
Contract Agent pursuant to the provisions of the Purchase Contract Agreement.
If, notwithstanding the foregoing, the Purchase Contract Agent shall receive
any payments of principal on account of any Pledged Treasury Notes, the
Purchase Contract Agent shall hold the same as trustee of an express trust for
the benefit of the Company (and promptly deliver over to the Company) for
application to the obligations of the Holders of the Securities of which such
Treasury Notes are a part under the Purchase Contracts relating to the
Securities of which such Treasury Notes are a part, and such Holders shall
acquire no right, title or interest in any such payments of principal so
received.
Section 4. Release of Pledged Treasury Notes. (a) Upon written notice
to the Collateral Agent by the Company or the Purchase Contract Agent that
there has occurred a Termination Event, the Collateral Agent shall release all
Pledged Treasury Notes from the Pledge and shall transfer all such Treasury
Notes, free and clear of any lien, pledge or security interest created hereby,
to the Purchase Contract Agent.
If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail immediately to effectuate the release and transfer of all Pledged
Treasury Notes as provided by this Section 4(a), the Purchase Contract Agent
shall, subject to Section 6.12, (i) use its best efforts to obtain an opinion
of a nationally recognized law firm reasonably acceptable to the Collateral
Agent to the effect that, as a result of the Company's being the debtor in such
a bankruptcy case, the Collateral Agent will not be prohibited from releasing
or transferring the Treasury Notes as provided in this Section 4(a), and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (y) the Purchase Contract Agent
shall be unable to obtain such opinion within ten days after the occurrence of
such Termination Event or (z) the Collateral Agent shall continue, after
delivery of such opinion, to refuse to effectuate the release and transfer of
all Pledged Treasury Notes as provided in this Section 4(a), then the Purchase
Contract Agent shall within fifteen days after the occurrence of such
Termination Event commence an action or proceeding in the court with
jurisdiction of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and transfer of all
Pledged Treasury Notes as provided by this Section 4(a) or (ii) commence an
action or proceeding like that described in subsection (i)(z) hereof within ten
days after the occurrence of such Termination Event.
(b) Upon written notice to the Collateral Agent by the Purchase
Contract Agent that one or more Holders of Securities have elected to effect
Early Settlement of their respective obligations under the Purchase Contracts
forming a part of such Securities in accordance with the terms of the Purchase
Contracts and the Purchase Contract Agreement (setting forth the number of such
Purchase Contracts as to which such Holders have elected to effect Early
Settlement), and that the Purchase Contract Agent has received from such
Holders, and paid to the Company, the related Early Settlement Amounts pursuant
to the terms of the Purchase Contracts and the Purchase Contract Agreement and
that all conditions to such Early Settlement have been satisfied, then the
Collateral Agent shall release from the Pledge Pledged Treasury Notes with a
principal amount equal to the product of (i) the Stated Amount times (ii) the
number of such Purchase Contracts as to which such Holders have elected to
effect Early Settlement.
(c) Transfers of Treasury Notes pursuant to Section 4(a) or (b) shall
be by Federal Reserve Bank-Wire or in another appropriate manner, (i) if the
Collateral Agent shall have received such notification at or prior to 11:00
a.m., New York City time, on a Business Day, then no later than 2:00 p.m., New
York City time, on such Business Day and (ii) if the Collateral Agent shall
have received such notification on a day that is not a Business Day or after
11:00 a.m., New York City time, on a Business Day, then no later than 10:00
a.m., New York City time, on the next succeeding Business Day.
Section 5. Rights and Remedies. (a) The Collateral Agent shall have
all of the rights and remedies with respect to the Pledged Treasury Notes of a
secured party under the Uniform Commercial Code as in effect in the State of
New York (the "Code") (whether or not the Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Notes as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Treasury
Notes are a part under the Purchase Contracts forming a part of such
Securities, the Collateral Agent shall have and may exercise, with reference to
such Pledged Treasury Notes and such obligations of such Holder, any and all of
the rights and remedies available to a secured party under the Code after
default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge,
and the perfection and priority thereof, and to confirm the rights of the
Collateral Agent hereunder.
Section 6. The Collateral Agent and the Purchase Contract Agent. It
is hereby agreed as follows:
6.01. Appointment, Powers and Immunities. The Collateral Agent shall
act as agent for the Company hereunder with such powers as are specifically
vested in the Collateral Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. The Collateral Agent:
(a) shall have no duties or responsibilities except those expressly set forth
in this Agreement and no implied covenants or obligations shall be inferred
from this Agreement against the Collateral Agent, nor shall the Collateral
Agent be bound by the provisions of any agreement by any party hereto beyond
the specific terms hereof; (b) shall not be responsible for any recitals
contained in this Agreement, or in any certificate or other document referred
to or provided for in, or received by it under, this Agreement, the Securities
or the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract
Agreement or any other document referred to or provided for herein or therein
or for any failure by the Company or any other Person (except the Collateral
Agent) to perform any of its obligations hereunder or thereunder; (c) shall not
be required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6.02 hereof);
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith or therewith, except for its own negligence;
and (e) shall not be required to advise any party as to selling or retaining,
or taking or refraining from taking any action with respect to, any securities
or other property deposited hereunder. Subject to the foregoing, during the
term of this Agreement, the Collateral Agent shall take all reasonable action
in connection with the safe keeping and preservation of the Pledged Treasury
Notes hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Treasury
Notes.
6.02. Instructions of the Company. The Company shall have the right,
by one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for
any right or remedy available to the Collateral Agent, or of exercising any
power conferred on the Collateral Agent, or to direct the taking or refraining
from taking of any action authorized by this Agreement; provided, however, that
(i) such direction shall not conflict with the provisions of any law or of this
Agreement and (ii) the Collateral Agent shall be adequately indemnified as
provided herein. Nothing in this Section 6.02 shall impair the right of the
Collateral Agent in its discretion to take any action or omit to take any
action which it deems proper and which is not inconsistent with such direction.
6.03. Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with
instructions given by the Company in accordance with this Agreement.
6.04. Rights in Other Capacities. The Collateral Agent and its
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to
the Company, provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Treasury Notes.
6.05. Non-Reliance on Collateral Agent. The Collateral Agent shall not
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent shall
not have any duty or responsibility to provide the Company with any credit or
other information concerning the affairs, financial condition or business of
the Purchase Contract Agent or any Holder of Securities (or any of their
affiliates) that may come into the possession of the Collateral Agent or any of
its affiliates.
6.06. Compensation and Indemnity. The Company agrees: (i) to pay the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder and (ii) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this Agreement,
including the costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in connection with
the exercise or performance of such powers and duties.
6.07. Failure to Act. In the event of any ambiguity in the provisions
of this Agreement or any dispute between or conflicting claims by or among the
parties hereto and/or any other Person with respect to any funds or property
deposited hereunder, the Collateral Agent shall be entitled, at its sole
option, to refuse to comply with any and all claims, demands or instructions
with respect to such property or funds so long as such dispute or conflict
shall continue, and the Collateral Agent shall not be or become liable in any
way to any of the parties hereto for its failure or refusal to comply with such
conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims
or demands shall have been finally determined by a court of competent
jurisdiction or settled by agreement between the conflicting parties as
evidenced in a writing, satisfactory to the Collateral Agent or (ii) the
Collateral Agent shall have received security or an indemnity satisfactory to
the Collateral Agent sufficient to save the Collateral Agent harmless from and
against any and all loss, liability or expense which the Collateral Agent may
incur by reason of its acting. The Collateral Agent may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent may deem necessary. Notwithstanding anything contained herein
to the contrary, the Collateral Agent shall not be required to take any action
that is in its opinion contrary to law or to the terms of this Agreement, or
which would in its opinion subject it or any of its officers, employees or
directors to liability.
6.08. Resignation of Collateral Agent. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (a) the
Collateral Agent may resign at any time by giving notice thereof to the Company
and the Purchase Contract Agent, (b) the Collateral Agent may be removed at any
time by the Company and (c) if the Collateral Agent fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than 20 days after receiving written notice of such failure by the Purchase
Contract Agent and such failure shall be continuing, the Collateral Agent may
be removed by the Purchase Contract Agent. The Purchase Contract Agent shall
promptly notify the Company of any removal of the Collateral Agent pursuant to
clause (c) of the immediately preceding sentence. Upon any such resignation or
removal, the Company shall have the right to appoint a successor Collateral
Agent. If no successor Collateral Agent shall have been so appointed and shall
have accepted such appointment within 30 days after the retiring Collateral
Agent's giving of notice of resignation or such removal, then the retiring
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent. The Collateral Agent shall be a
bank which has an office in New York, New York with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Treasury Notes)
to such successor Collateral Agent. The retiring Collateral Agent shall, upon
such succession, be discharged from its duties and obligations as Collateral
Agent hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 6 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
Promptly following the removal or resignation of the Collateral Agent
the Company shall give written notice thereof to Moody's Investors Services,
Inc.
6.09. Right to Appoint Agent or Advisor. The Collateral Agent shall
have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by such agents or advisors selected in good faith.
6.10. Survival. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent.
6.11. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Collateral Agent or its officers, employees or agents be
liable under this Agreement to any third party for indirect, special, punitive,
or consequential loss or damage of any kind whatsoever, including lost profits'
whether or not the likelihood of such loss or damage was known to the
Collateral Agent, or any of them, incurred without any act or deed that is
found to be attributable to gross negligence on the part of the Collateral
Agent.
6.12. The Purchase Contract Agent. The duties and responsibilities of
the Purchase Contract Agent under this Agreement shall in each case be governed
by Article VII of the Purchase Contract Agreement.
Section 7. Amendment.
7.01. Amendment Without Consent of Holders. Without the consent of any
Holders, the Company, the Collateral Agent and the Purchase Contract Agent, at
any time and from time to time, may amend this Agreement, in form satisfactory
to the Company, the Collateral Agent and the Purchase Contract Agent, for any
of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent;
or
(4) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other such
provisions herein, or to make any other provisions with respect to
such matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
7.02. Amendment with Consent of Holders. With the consent of the
Holders of not less than 66 2/3% of the Outstanding Securities, by Act of said
Holders delivered to the Company, the Purchase Contract Agent and the
Collateral Agent, the Company, when authorized by a Board Resolution, the
Purchase Contract Agent and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to receive
interest payments on the underlying Treasury Notes or otherwise
adversely affect the Holder's rights in or to such Treasury Notes; or
(2) otherwise effect any action that would require the consent of
the Holder of each Outstanding Security affected thereby pursuant to
the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(3) reduce the percentage of Outstanding Securities the consent
of whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
7.03. Execution of Amendments. In executing any amendment permitted by
this Section, the Collateral Agent and the Purchase Contract Agent shall be
entitled to receive and (subject to Section 6.01 hereof, with respect to the
Collateral Agent, and Section 7.1 of the Purchase Contract Agreement, with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement.
7.04. Effect of Amendments. Upon the execution of any amendment under
this Section, this Agreement shall be modified in accordance therewith, and
such amendment shall form a part of this Agreement for all purposes; and every
Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered under the Purchase Contract
Agreement shall be bound thereby and that all conditions precedent to such
execution and delivery have been satisfied.
7.05. Reference to Amendments. Security Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Security Certificates
so modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 8. Miscellaneous.
8.01. No Waiver. No failure on the part of the Collateral Agent or any
of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral
Agent or any of its agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any
remedies provided by law.
8.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
8.03. Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof or, as to any party, at such other address as shall
be designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopier or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
8.04. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Collateral Agent and the Purchase Contract Agent, and the Holders from time
to time of the Securities, by their acceptance of the same, shall be deemed to
have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Purchase Contract
Agent.
8.05. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.06. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
8.07. Expenses, etc. The Company agrees to reimburse the Collateral
Agent for: (a) all reasonable out-of-pocket costs and expenses of the
Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms
of this Agreement; (b) all reasonable costs and expenses of the Collateral
Agent (including, without limitation, reasonable fees and expenses of counsel)
in connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 8.07; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred
to herein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection
of any security interest contemplated hereby.
8.08. Security Interest Absolute. All rights of the Collateral Agent
and security interests hereunder, and all obligations of the Holders from time
to time of the Securities hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Comcast Cable Communications, Inc.
By:
--------------------------------------------
Name:
Title:
Address for Notices:
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Attention: _____________
Telecopy: _____________
_______________________________, as
Purchase Contract Agent and as
attorney-in-fact of the Holders from time
to time of the Securities
By:
--------------------------------------------
Address for Notices:
______________, as Collateral Agent
By:
--------------------------------------------
Name:
Title:
Address for Notices:
Exhibit 5.1
[Davis Polk & Wardwell Letterhead]
November 2, 1998
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Ladies and Gentlemen:
We have acted as your counsel in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, for the registration of the sale by Comcast Cable Communications, Inc.
(the "Company") from time to time of up to $1,000,000,000 aggregate principal
amount of (i) senior debt securities and subordinated debt securities
(collectively, the "Debt Securities"), (ii) warrants to purchase Debt Securities
("Warrants"), (iii) purchase contracts ("Purchase Contracts") requiring the
holders thereof to purchase or sell (x) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (y) currencies or composite
currencies or (z) commodities, (iv) preferred securities (the "Preferred
Securities") of Comcast Cable Trust I, Comcast Cable Trust II and Comcast Cable
Trust III, each a statutory business trust created under the Business Trust Act
of the State of Delaware (each, a "Trust" and, collectively, the "Trusts"), (v)
units ("Units") of Debt Securities, Warrants, Purchase Contracts and Preferred
Securities, or any combination of the foregoing and (vi) guarantees of the
Preferred Securities by the Company (the "Guarantees"). The senior Debt
Securities are to be issued pursuant to an Indenture (the "Senior Debt
Indenture") between the Company and The Bank of Montreal Trust Company, as
trustee. The subordinated Debt Securities are to be issued pursuant to an
Indenture (the "Subordinated Debt Indenture") in the form filed as an exhibit to
the Registration Statement .
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary for the purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental indenture to be
entered into in connection with the issuance of any Debt Security have
been duly authorized, executed and delivered by the Trustee and the
Company, the specific terms of a particular Debt Security have been
duly authorized and established in accordance with the applicable
Indenture and such Debt Security has been duly authorized, executed,
authenticated, issued and delivered in accordance with the applicable
Indenture and the applicable underwriting or other agreement, such Debt
Security will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws now or
hereinafter in effect relating to or affecting the enforcement of
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
2. When the Warrants have been duly authorized by the Company,
the applicable Warrant Agreement has been duly executed and delivered
and the Warrants have been duly issued and delivered by the Company as
contemplated by the Registration Statement and any prospectus
supplement relating thereto, the Warrants will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar laws now or hereinafter in effect relating to or affecting
the enforcement of creditors' rights generally and (b) the availability
of equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
3. When the Guarantees have been duly authorized by the
Company, the applicable Guarantee Agreement has been duly executed and
delivered and the Preferred Securities have been duly issued and
delivered by the applicable Trust as contemplated by the Registration
Statement and any prospectus supplement relating thereto, the
Guarantees will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws now or
hereinafter in effect relating to or affecting the enforcement of
creditors' rights generally and (b) the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
4. When the Units and Purchase Contracts have been duly
authorized by the Company, the applicable Unit Agreement, Purchase
Contract Agreement and Pledge Agreement have been duly executed and
delivered, the Units and Purchase Contracts will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or similar laws now or hereinafter in effect relating to or affecting
the enforcement of creditors' rights generally and (b) the availability
of equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding at law
or in equity).
In connection with the opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such security, (i)
the Board of Directors shall have duly established the terms of such security
and duly authorized the issuance and sale of such security and such
authorization shall not have been modified or rescinded; (ii) the Registration
Statement shall have been declared effective and such effectiveness shall not
have been terminated or rescinded; and (iii) there shall not have occurred any
change in law affecting the validity or enforceability of such security. We have
also assumed that none of the terms of any security to be established subsequent
to the date hereof, nor the issuance and delivery of such security, nor the
compliance by the Company with the terms of such security will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In addition, we consent to the reference to us
under the caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 5.2
November 2, 1998
Comcast Cable Communications, Inc.
1105 North Market Street
Wilmington, Delaware 19801
Re: Comcast Cable Trust I, Comcast Cable Trust II and
Comcast Cable Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Comcast Cable
Communications, Inc., a Delaware corporation (the "Company"), Comcast Cable
Trust I, a Delaware business trust ("Trust I"), Comcast Cable Trust II, a
Delaware business trust ("Trust II"), and Comcast Cable Trust III, a Delaware
business trust ("Trust III") (Trust I, Trust II and Trust III are hereinafter
collectively referred to as the "Trusts" and sometimes hereinafter individually
referred to as a "Trust"), in connection with the matters set forth herein. At
your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the
office of the Secretary of State of the State of Delaware (the "Secretary of
State") on October 30, 1998;
(b) The Certificate of Trust of Trust II, as filed with the
Secretary of State on October 30, 1998;
(c) The Certificate of Trust of Trust III, as filed with the
Secretary of State on October 30, 1998;
(d) The Declaration of Trust of Trust I, dated as of
October 30, 1998 among the Company and the trustees named therein;
(e) The Declaration of Trust of Trust II, dated as of
October 30, 1998 among the Company and the trustees named therein;
(f) The Declaration of Trust of Trust III, dated as of
October 30, 1998 among the Company and the trustees named therein;
(g) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Guaranteed Trust Preferred Securities of the
Trusts representing preferred undivided beneficial interests in the assets of
the Trusts (each, a "Guaranteed Trust Preferred Security" and collectively, the
"Guaranteed Trust Preferred Securities"), filed by the Company and the Trusts
with the Securities and Exchange Commission;
(h) A form of Amended and Restated Declaration of Trust
for each of the Trusts, to be entered into between the Company, the
trustees of the Trust named therein, and the holders, from time to time, of
the undivided beneficial interests in the assets of such Trust
(collectively, the "Trust Agreements" and individually, a "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(i) A Certificate of Good Standing for each of the Trusts,
dated October 30, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (i) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (i) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each
of the Trust Agreements will constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including with respect to
the creation, operation and termination of the applicable Trust, and that the
Trust Agreements and the Certificates of Trust will be in full force and effect
and will not be amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Guaranteed Trust Preferred Security is to be issued by the
Trusts (collectively, the "Guaranteed Trust Preferred Security Holders") of a
Guaranteed Trust Preferred Security Certificate for such Guaranteed Trust
Preferred Security and the payment for such Guaranteed Trust Preferred
Security, in accordance with the Trust Agreements and the Registration
Statement, and (vii) that the Guaranteed Trust Preferred Securities are
authenticated, issued and sold to the Capital Security Holders in accordance
with the Trust Agreements and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Guaranteed Trust Preferred Securities of each Trust
will represent valid and, subject to the qualifications set forth in paragraph
3 below, fully paid and nonassessable undivided beneficial interests in the
assets of the applicable Trust.
3. The Guaranteed Trust Preferred Security Holders, as
beneficial owners of the applicable Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware. We note that the Guaranteed Trust Preferred Security Holders
may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, PA
GCK/sek
EXHIBIT 12.1
COMCAST CABLE COMMUNICATIONS, INC.
RATIO OF EARNINGS TO FIXED CHARGES
(dollars in millions)
<TABLE>
<CAPTION>
Six Months Ended June 30, Years Ended December 31,
--------------------------- ----------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (loss) before fixed
charges (1):
Loss before extraordinary items
and cumulative effect of
accounting changes................. ($54.2) ($65.8) ($112.1) ($22.6) ($48.9) ($23.0) ($6.4)
Income tax (benefit) expense.......... (20.7) (23.5) (43.6) (4.5) (24.9) (1.8) 23.5
Equity in net loss of affiliate.......
Fixed charges......................... 135.2 132.3 265.2 260.5 273.8 176.5 181.3
------ ------ ------ ------ ------ ------ ------
$60.3 $43.0 $109.5 $233.4 $200.0 $151.7 $198.4
====== ====== ====== ====== ====== ====== ======
Fixed Charges (1):
Interest expense...................... $107.9 $119.9 $227.9 $228.4 $245.6 $155.6 $162.2
Interest expense on notes payable
to affiliates...................... 27.3 12.4 37.3 32.1 28.2 20.9 19.1
------ ------ ------ ------ ------ ------ ------
$135.2 $132.3 $265.2 $260.5 $273.8 $176.5 $181.3
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges
(2)................................ -- -- -- -- -- -- 1.1
</TABLE>
- -------------------
(1) For the purposes of calculating the ratio of earnings to fixed charges,
earnings consist of income (loss) before extraordinary items, cumulative
effect of accounting changes, income tax expense (benefit) and fixed
charges. Fixed charges consist of interest expense and interest expense on
notes payable to affiliates.
(2) For the six months ended June 30, 1998 and 1997, earnings, as defined
above, were inadequate to cover fixed charges by $74.9 million and $89.3
million, respectively. For the years ended December 31, 1997, 1996, 1995
and 1994, earnings, as defined above, were inadequate to cover fixed
charges by $155.7 million, $27.1 million, $73.8 million and $24.8 million,
respectively.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Comcast Cable Communications, Inc., Comcast Cable Trust I, Comcast
Cable Trust II, and Comcast Cable Trust III on Form S-3 of our reports dated
February 27, 1998, appearing in the Annual Report on Form 10-K of Comcast Cable
Communications, Inc. for the year ended December 31, 1997 and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
October 30, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a trustee Pursuant to Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation or 13-4941093
organization (I.R.S. employer
if not a U.S. national bank) identification no.)
Wall Street Plaza
88 Pine Street
New York, New York 10005
(Address of principal executive offices) (Zip code)
Mark F. McLaughlin
Bank of Montreal Trust Company
Wall Street Plaza
88 Pine Street, New York, New York 10005
(212) 701-7602
(Name, address and telephone number of agent for service)
--------------------------------------------
COMCAST CABLE COMMUNICATIONS, INC.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of 23-217555
incorporation or organization (I.R.S. employer
number) identification)
1105 North Market Street
Wilmington, Delaware 19801
(Address of principal executive offices)
--------------------------------------------
Senior Debt Securities and Warrants to Purchase Senior Debt Securities
(Title of the indenture securities)
--------------------------------------------
================================================================================
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
Exhibit 1 - Copy of Organization Certificate of Bank of Montreal Trust
Company to transact business and exercise corporate trust powers;
incorporated herein by reference as Exhibit "A" filed with Form
T-1 Statement, Registration No. 33-46118.
Exhibit 4 - Copy of the existing By-Laws of Bank of Montreal Trust
Company; incorporated herein by reference as Exhibit "B" filed
with Form T-1 Statement, Registration No. 33-80928.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Act; incorporated herein by reference as Exhibit "C" with Form T-1
Statement, Registration No. 33-46118.
Exhibit 7 - A copy of the latest report of condition of Bank of Montreal
Trust Company published pursuant to law or the requirements of its
supervising or examining authority, attached hereto as Exhibit
"D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Bank of Montreal Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 26TH day
of October , 1998.
BANK OF MONTREAL TRUST COMPANY
By: /s/ Amy S. Roberts
-----------------------
Amy S. Roberts
Vice President
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
--------------------------------------------
ASSETS
Due From Banks $ 677,400
---------------
Investment Securities:
State and Municipal 16,513,582
Other 100
---------------
Total Securities 16,513,682
Loans and Advances
Federal Funds Sold 20,900,00
Overdrafts 12,169
---------------
Total Loans and Advances 20,912,169
Investment in Harris Trust, NY 8,725,608
Premises and Equipment 475,614
Other Assets 2,636,845
---------------
TOTAL ASSETS $ 49,941,318
===============
LIABILITIES
Trust Deposits 8,191,549
Other Liabilities 16,944,443
---------------
TOTAL LIABILITIES 25,135,992
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 19,605,350
Equity - Municipal Gain/Loss (22,212)
---------------
TOTAL CAPITAL ACCOUNTS 24,805,326
---------------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $ 49,941,318
===============
I, Mark F. McLaughlin, Vice President, of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Mark F. McLaughlin
June 30, 1998
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declared that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healy
Steven R. Rothbloom
